Comments (50) | Add a comment
$739 million award sought in hepatitis C case
Tools
LAS VEGAS REVIEW-JOURNAL
Lawyers for three people infected in Southern Nevada's hepatitis C outbreak asked a jury Friday to levy $739 million in punitive damages against the drug companies found liable for the infections.
Robert Eglet and Will Kemp equated the amount to two weeks' worth of combined net revenues last year for Teva Pharmaceuticals USA, Baxter Healthcare Corp. and McKesson Medical-Surgical, who made and sold the milky sedative propofol to the Endoscopy Center of Southern Nevada and its sister clinic.
Eglet told the eight jurors to send a message to the drug companies that were punished for "putting corporate profits above patient safety" and motivated them to change so future outbreaks would be prevented.
He compared the drug companies to a habitual criminal who doesn't show any remorse until he's caught and standing before a judge awaiting his punishment.
"Your verdict has got to be loud enough so they can hear it all across this state, all across this country and all over the world," Eglet said. "It's going to happen again unless your verdict is loud enough to be heard."
The eight-person jury deliberated about 90 minutes Friday before going home for the weekend. The jurors will return Monday to continue deliberations.
A punitive award of $739 million would be a Nevada record, surpassing the $500 million a jury levied against Teva and Baxter last year in the first outbreak-related civil trial.
After hearing seven weeks of trial testimony, the jury on Thursday awarded $20.1 million in compensatory damages to hepatitis patients Anne Arnold, Richard Sacks, Tony Devito and two spouses.
Lawyers for the drug companies told jurors that their clients already had taken notice.
"Your verdict is already sending a message, and you don't need to award substantial punitive damages to finish your message," Teva lawyer Mark Tully said.
Phil Hymanson, the lawyer for Baxter and McKesson, added: "$20 million is a very strong message."
During trial, Eglet and Kemp argued that the drug companies should not have sold large 50-milliliter vials of the drug to endoscopy centers, where typical procedures require less than 20 milliliters.
Because of the larger vials, nurses at the Dipak Desai-owned endoscopy clinics were tempted to reuse them among multiple patients to avoid throwing away leftovers, the lawyers argued.
The companies continued to sell the big vials to endoscopy centers despite medical journals published since 1995 that linked the reuse of large propofol vials to at least seven hepatitis outbreaks across the world, the plaintiffs said.
The reuse of propofol vials was a central factor in Southern Nevada's outbreak, which prompted 60,000 patient notifications warning of potential infection in 2008, the largest in U.S. history, health officials found.
Nurse anesthetists at the endoscopy clinics contaminated the vials when they reused syringes on infected patients, and the blood-borne diseases then spread when the contaminated vials were used for uninfected patients, according to the Southern Nevada Health District's investigation.
Desai and two nurse anesthetists face criminal charges stemming from the outbreak.
During trial, the drug company lawyers contended the clinic staffers, not their product, was responsible for the spread of hepatitis C.
The patients' lawyers didn't dispute that the doctors and nurses misused the drug but said the companies should be held liable because they knew their large single-patient use vials were being misused but did nothing to stop it.
In his argument for punitive damages, Eglet reminded the jurors that they had the power to hold the companies accountable.
"You need to tell the drug companies and in this community, in our community, the safety of our people is more important than the safety of their corporate profits," he said.
Contact Brian Haynes at bhaynes@reviewjournal.com or 702-383-0281.
Comments
Terms & Conditions
The following comments are provided by readers and are the sole responsiblity of the authors. The Review-Journal does not review comments before publication nor guarantee their accuracy. By publishing a comment here you agree to abide by the comment policy. If you see a comment that violates the policy, please use the Report Abuse button.
Some comments may not display immediately due to an automatic filter. These comments will be reviewed within 24 hours. Please do not submit a comment more than once.
Note: Comments made by reporters and editors of the Las Vegas Review-Journal are presented with a yellow background.
RSS
Twitter
Facebook
@beentheredonethat: You are incorrect. What was "shown" was Eglets opinion, and simple majority of Las Vegas' infamous jury pool dullards bought it. 100ml vials of propofol are quite commonly used in all types of practices, despite the lies Eglet weaves... and your protestations. Using your logic, any size container of all drugs are unsafe.
I would put my anesthesia acumen up against yours any day. How many years have you been practicing anesthesia anyway?
Apparently, since the drug companies could have taken action to avoid this incident, they are accountable. If that's the case, I wouldn't want to be in the business of making ANYTHING.
At what point to people become accountable for themselves? In this case, the patients trusted their doctor, and the trust wasn't justified. There are innumerable ways that the issue could have been avoided, but to pin it on the drug companies to prevent misuse of their product is stupid and costly for everyone.
Hopefully we can all learn to put on our big boy britches soon and realize that punishing others doesn't make us responsible for ourselves.
Oh, and BTDT: No juror has to explain their position, and what's right is right - being a juror is not just about interpreting facts. If 12 people can't agree, it's probably best to err on the side of caution rather than string somebody up. I wonder how many people you'd have punished because you followed the courts "INSTRUCTIONS" instead of your conscience:
http://en.wikipedia.org/wiki/Jury_nullification
The Truth Detector: It was shown that Teva knew that their product was being misused; this was one of the elements that HAD to be proven to the jury; it was. And, what you don't know about the law could fill a, well, an entire post by you. Suffice it to say that what I told you the law was, and that I told you that the jury would find Teva liable, and the reasons why Teva would be found liable are now FACTS. And, your peculiar "ideas" about anesthesia are very interesting and I wonder whether the medical board knows that you claim anesthesiologists/nurses are "abandoning" their patients in order to obtain anesthetic that SHOULD have been available to them during the procedures? Sounds like you may not be doing the job that you are there to perform; maybe you shouldn't spend so much time arguing about the law, something you clearly no nothing about, and spend more time doing anesthesia which you "claim" to know "something" about, even though, if you practices what you "preach" here, there is cause to doubt that.
golyadkins wrote on October 09, 2011 02:42 AM: Truth Detector: Just curious, did you observe the trial? Also, if Teva/Baxter did indeed know that their product was being misused, do you feel they had any obligation to act?
Your quote.
Unless Teva/Baxter can see into every single procedure room everywhere their drug is being used, they cannot possibly know. They do not know what I do/do not do while I am giving an anesthetic. It is not their obligation to know. They are required by law to NOT SELL THEIR PRODUCT to anyone who isn't appropriately licensed and authorized to administer their product.
So, in YOUR esteemed opinion, is Teva/Baxter supposed to act on me utilizing 100ml bottles of propfol for sedation? Yes or No. Please answer the question.
Truth Detector: Please try reading a bit more carefully-I didn't say whether Teva or Baxter actually knew. I asked for your opinion IF they had known (note, I'm not saying they didn't know either). So again, IF they did have actual knowledge, do you think they would have a responsibility to act? Yes? No? Also, please answer my other question: were you present at the trial?
"Also, if Teva/Baxter did indeed know that their product was being misused, do you feel they had any obligation to act?" --golyadkins
Teva and Baxter KNEW that their product was being misused??? According to reports and court depositions, Teva and Baxter did NOT KNOW that their product was being misused. Eglet says they knew that there was a POTENTIAL for misuse. (there is with every drug) The licensed purchaser of the product is under the obligation to use the product as prescribed, using aseptic technique and as labeled.Desai and his merry band of imbeciles did none of these.
I routinely use 100ml bottles of propofol and unless I am convicted of fraud and/or malpractice, Teva/Baxter does not know that their product is being misused by me. They must assume that as a licensed and registered and certified nurse anesthetist*, I am giving a safe anesthetic.
Ergo, since it isn't Teva/Baxters obligation to know (or even anticipate) that their 20ml, 50ml and 100ml bottles of safe, appropriately purchased and labeled (for single use only) drug is/isn't being misused by each and every anesthesia provider, they are not obligated to pay off some shameless money grabbers and their ambulance chaser lawyer.
*Appropriately Licensed in the states of Minnesota, Wisconsin, Iowa, North Dakota, South Dakota, Washington, and Nevada. Certified Registered Nurse Anesthetist for the past 21 years. Which certainly gives me more credibility than you, btdt or Eglet when it comes to giving a safe anesthetic.
@beentheredonethat: Lets stick with the facts we ALL know, shall we? What you say Teva and Baxter "knew" is nothing but your esteemed opinion. (!!!)
1. Eglet claims as FACT that colonoscopies never require more than 20ml of propofol, and typically require only 5-10ml. This, is of course utter nonsense. Eglet couldn't distinguish his @ss from his elbow when it came time to perform the simplest of anesthetics. He is a BS artist of the highest order, but you have to hand it to him, this snake-oil salesman knows how to work an ignorant jury pool. He has chosen his lifelong profession well. And he has a great local pool of imbeciles in Las Vegas to help him do it.
2. You know nothing of anesthesia, nor how to give a safe anesthetic. Let alone the logistics of preparing for a safe and effective anesthetic.
3. A safe and effective anesthetic has absolutely nothing to do with the amount of anesthetic available to an anesthetist or anesthesiologist... unless that amount is too little. A bartender can mix a fabulous cocktail for his customers in a timely manner, with a 1.75 ml bottle of booze... but he cannot if he doesn't have enough when he needs it. Which brings us to...
4. Having the right anesthetic available when you need it, in the amount you MIGHT need. Which is why it is financially prudent and medically safe and proper to have 50mls of propofol readily available to the anesthesia provider when and where he needs it. I routinely blow through 30ml of propofol for the most routine of sedation procedures. Every patient is different. An anesthetist never knows when a procedure is going to be prolonged (diverticulosis) or how a patient is going to tolerate an anesthetic (alcoholics and drug users).
Eglet is a bald face liar, and anyone who says he is not a liar is a liar himself.
@BTDT...Your analogy about the mom making sandwiches for her children is perfect. However, in this case Teva did not sell poisoned lunch meat. In this case the 'mom' knowingly poisoned the lunch meat and fed it to the 'children.' Yet somehow you think that the farmer that raised the cow is liable for what ultimately was the illegal and irresponsible actions of the 'mom,"
Coke of course DOES sell large size containers of their drink and of course there is a market for these large size containers. BUT, whether there is a "market" or not for a particular product is irrelevant; the market doesn't get ultimate authority to decide when someone has violated the law, or acted negligently. The market DID, formerly, "decide" much of this country's laws regarding child labor, workplace conditions, and even tort laws; that changed. In the old days, the days when arcane notions of property relationships between people held sway, unless you actually "purchased" a product, you could NEVER hold a manufacturer liable. This meant, unless YOU actually purchased the product from the manufacturer, they were free from liability. So that, if a manufacturer put poison into some lunch meat, and that lunch meat were put into a sandwich by a loving mother that did not KNOW the lunch meat was poison, and the lunch meat was fed to a child and the child died, the manufacturer was NOT LIABLE. Society said, THIS HAS GOT TO CHANGE. And it was, thankfully for all.
You ever wonder why Coke doesn't sell 5 liter bottles? It's because their isn't a market for it. There was a market for the 50ml vials and they were sold across the world with less than one percent of these sales resulting in the spread of HepC. Just like the profits from selling a 20oz bottle of Coke for $1.50 are higher than the profits from selling a 2 liter bottle for $1.99, Teva would have profited more if they sold only 20ml bottles at a higher price. Yet, buying 20ml bottles was no cost effective for the end users, so Teva sold larger vials for less profits. While this case is about greed, it's the greed of the Endoscopy Center of Southern Nevada, the greed of lawyers like Robert Eglet and Will Kemp and the greed of the plaintiffs, not corporate greed. Three years ago I felt bad for the people infected now they just disgust me with their greed and lies.