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Jury: Drug companies owe $162.5 million in hepatitis C case
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Hepatitis C patient Anne Arnold blots a tear while other plaintiffs, from left, Donna Devito, her husband, Tony, and Richard Sacks listen to the jury decision Monday in their product liability lawsuit against three drug companies. Jeff Scheid/Las Vegas Review-Journal » Buy this photo
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Hepatitis C patient Michael Washington and his wife, Josephine, leave District Court Monday after the jury awarded them $7 million each in damages in their product liability lawsuit. Jeff Scheid/Las Vegas Review-Journal » Buy this photo
LAS VEGAS REVIEW-JOURNAL
Updated: Oct. 11, 2011 | 8:03 a.m.
Lawyers for three people infected in Southern Nevada's hepatitis C outbreak wanted the jury to send a message.
The drug companies who made and sold the sedative linked to the outbreak had put profits over safety, and they had to pay, they argued.
After deliberating about six hours over two days, the jury's message totaled $162.5 million.
"I think that sends a very loud message," lawyer Robert Eglet said in his office after the second multi-million verdict against Teva Parenteral Medicines Inc., Baxter Healthcare Corp. and McKesson Medical-Surgical.
The jury awarded the punitive damages on top of the $20.1 million in compensatory damages for Anne Arnold, Richard Sacks and Tony Devito and two spouses. The patients were infected with hepatitis C in the outbreak at the Endoscopy Center of Southern Nevada and its sister clinic. The outbreak was made public in 2008.
Their lawsuit, like dozens of others heading toward trial, involved product liability claims against the drug companies.
While the verdict was coming in, a jury in another courtroom awarded $14 million in compensatory damages to hepatitis C patient Michael Washington and his wife, Josephine. That jury will determine punitive damages against Teva and Baxter later this week.
Lawyers for infected patients have hoped to win enough verdicts to motivate Israel-based Teva, the world's largest generic drug maker, to reach a global settlement and avoid going to trial on hundreds of pending lawsuits.
"Hopefully that will be enough for the drug companies to realize they need to come to this community, and they need to make this right and resolve this case with everyone," Eglet said. "But if not, we're prepared to take you on."
Arnold said the case wasn't about the money but about ensuring that others don't suffer as she has suffered.
Her life will be cut short by the liver disease, and "you can't put a price tag on that," she said.
Eglet and Will Kemp said they offered to settle the case for $4.9 million, but they never got a response.
The same thing happened with the first outbreak-related trial last year, when a jury awarded Henry Chanin and his wife $500 million in punitive damages after they had offered to settle for $1.7 million.
That case remains on appeal before the Nevada Supreme Court.
The $162.5 million punitive-damage verdict breaks down to $89.4 million from Teva, $55.3 million from Baxter and $17.9 million from McKesson.
As the courtroom emptied, Teva lawyer Mark Tully waded through the crowd to shake hands with Sacks, Devito and his wife, Donna.
He did not comment on the verdict.
TEVA PROMISES APPEAL
In a statement promising to appeal the verdict, Teva said that the legal system in Las Vegas was broken and that the jury wasn't allowed to hear all the facts.
"We believe that if we had been able to present our full defense, this verdict and the following decision would have had a different outcome," the statement said. "Teva should not be held liable for the blatant disregard for patient safety by medical professionals at their facility. While the mistreatment of patients is unacceptable, it was not Teva's fault."
The jury disagreed.
Jurors did not think that the 50-milliliter vials of propofol were defective, but they thought the drug companies didn't do enough to prevent their product from being misused, two jurors said.
Martin, a 38-year-old graphic designer, and Roger, a 29-year-old sheet metal worker, said jurors thought the companies should have sent "Dear Doctor" letters to the clinics warning them of the dangers of reusing large vials of propofol among multiple patients.
Neither juror wanted to give his full name because of publicity surrounding the case.
Company lawyers had argued that such a letter would have done little good in the clinics run by Dr. Dipak Desai.
LACK OF WARNINGS RAISED CONCERN
Jurors agreed and believed the clinics shared between 60 percent to 80 percent of the blame for the hepatitis outbreak. But the drug companies never bothered to send any warnings despite a history of red flags and worldwide hepatitis outbreaks linked to large vials of propofol, they said.
"The big thing was their not even trying to stop it," Roger said.
When it came to punitive damages, jurors wanted to set an amount large enough to be a deterrent, but they quickly moved off the $739 million suggested by the patients' lawyers because that number represented company revenues from all of their products.
The jury focused on propofol sales, then whittled that number down based on how much responsibility the drug companies shared with the clinics.
Both Roger and Martin said they thought the lawsuit sounded frivolous when they filled out their juror questionnaires. But after sitting through almost two months of trial, they believed the drug companies shared in the blame.
If the drug companies had taken some preventive steps, the verdict might have been different, they said.
"It just seems like they didn't even try," Roger said. "The fact is they knew these things, but they didn't do anything."
Contact reporter Brian Haynes at bhaynes@reviewjournal.com or 702-383-0281.
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@BTDT...While your basic argument is that Teva should have stopped selling Propofol in 50ml vials in order to avoid this tragedy, we can cut right to the quick. Teva produced and sold Propofol, which of course is the generic version of Diprivan, and since the FDA mandates that a generic drug be offered in the exact same manner as the brand name drug, Teva was not legally allowed to offering the 50ml vials as long as AstraZeneca offered Diprivan that way. The dangers associated with these vials is not the issue since under Nevada law, companies are permitted to manufacture dangerous products, even when they "has reason to anticipate that danger may result from a particular use of his product." as long as they place a warning on the product (Oak Grove Investors v. Bell & Gossett Co.) Only when a company fails to warn in such a situation is the product deemed defective for the purpose of liability. Lewis v. Sea Ray Boats held the warning must "adequately communicates the dangers that may result from its use or foreseeable misuse." Furthermore, the warnings must catch the user's attention, be understandable, indicate the specific risks of using the product, and be sufficiently intense to match the magnitude of the risk. Even your argument that the dangers of the misuse of 50ml vials was "well known," brings into play Yamaha Motor Company v. Arnoult where the court held that manufactures were "not required to warn against dangers that are generally known." Teva sold a product that was deemed safe by the FDA as long as it contained the appropriate warning and they were bound by law to offer 50ml vials as long as AstraZeneca did. One can not be found negligent if there actions were mandated by law.
bghs1986: Nevada law is not as you suggest regarding intervening acts and the holding from Price v. Blaine Kern Artista Inc, is in accord. "While criminal or tortious third-party activity typically severs the chain of proximate causation between the plaintiff and defendant, the chain remains unbroken when the third party's intervening intentional act is reasonably foreseeable. Price v. Blaine Kern Artista, Inc., 111 Nev. 515, 893 P.2d 367 (1995)." No matter whether an intervenor commits a criminal act or not is not determinative of the question relating to whether the original tortfeasor is liable. As you can see. The "Springmeyer v Ford Motor Co. case did not include a citation, but I did find a California case with the same name. If it is the one you were referencing, then you might wish to read it again because not only are the facts not on point, but the legal question was different; strict product liability vs. the manufacturing defect which was at issue in this case. And, in the event that you dispute what I wrote here, a simple citation to the holding in either case will be fine.
what kind of problem is there really,
if an employee at a hospital or clinic accidentally infects you
and shortens or ruins your life.
@BTDT...Actually, while you did post some legal speak, you haven't cited a single law or court ruling to support it. And what you did provide ignores current Nevada case law. As I posted earlier, in both "Price, v. Blaine Kern Artista Inc.," and "Springmeyer v. Ford Motor Co." the court determined that the intervening event need not be "extraordinary" at all. The court held that all that is necessary to break the chain of causation was proof that the intervening party had a willful "disregard of a safety notice or measure." In fact these precedents are clearly why, in the Chanin trial, Judge Jessi Walsh refused to allow any testimony from defense witnesses proving that the ECSN's staff knowingly ignored Teva's warnings. This was a blantant attempt to keep key facts from the jury, providing an unfair advantage to one of Walsh major campaign contributors. And I am curios how you support the statement "Teva could foresee that Desai would act this way, because this same conduct had happened in so many prior cases that Teva was aware of?" Teva was aware of only seven previous instances that were possible (not proven) to be a result reusing large vials. In none of those cases was it shown that the actions were willful and malicious as Desai's were. So, in fact no other cases like this one existed. But even if there were seven previous cases of criminal negligence similar to Deai's, that still isn't enough for a reasonable person to assume it would happen here in Las Vegas. You can not pre-judge an entire group of people based on the actions of a very few. Wasn't it more reasonably to assume that, like the other 99.999% of the medical community have and continue to do, their product would be used correctly?
It is clear to me, as well the most popular conservative talking heads on TV, that what markets such as pharmaceuticals need is LESS REGULATION! If we would just trust these pharmaceutical companies to choose ethics over profit, and - in effect - put our lives in their hands, with no one overseeing anything, then America would be fine! Poor pill manufacturers having to deal with evil regulations set forth by bleeding heart liberals to protect the lives of consumers! BUYER BEWARE! LESS REGULATION! MORE DEATHS IN THE NAME OF MORE PROFIT! See how making money solves everyone's problems??? Ok...maybe not the dead people...but everyone else's!
bhgs1986: The law I cited earlier regarding intervening events addressed the issue of why Desai and his malpractice, did NOT attenuate the liability of Teva; his conduct was foreseeable and NOT so extraordinary as to remove liability from Teva. (Teva could foresee that Desai would act this way, because this same conduct had happened in so many prior cases that Teva was aware of.
bghs1986: No, it was not "completely" reasonable for Teva to act in accordance with federal guidelines, they had an obligation to act as a reasonable manufacturer under the same or similar circumstances; i.e. one where they knew that their product was being misused. No matter how many times you try to argue that they didn't know, the facts and the findings are otherwise. It was "unreasonable" of Teva to expect medical professionals to act reasonably, because the evidence was that Teva KNEW that medical professionals were acting UNREASONABLY and thereby endangering their patients. The had a duty, based on that knowledge, to do SOMETHING. And, once again, and this seems to be going no where fast, whatever two of the jury members posited, to questions asked of them by the press, after the trial had ended, about what Teva MIGHT have done, is irrelevant to the question of whether Teva had an obligation to do something. preachersdaughter: The warnings were ONE method that Teva could have, and did use, to satisfy their duty to patients, BUT as the jury found, this was clearly insufficient mainly because those warnings existed prior to the numerous other cases of contamination that Teva KNEW about, and they obviously didn't accomplish the goal.
btdt...You act as if Teva was selling propofol by the gallon and labeling it "party size". THEY HAD CLEAR WARNINGS ON THE VIALS. Desai would have continued his dangerous and reckless methods regardless of the size of the vials or the warning labels on them. Do you actually believe that after 4 years of undergraduate school, 4 years of medical school, and 3 to 8 years of internship and residency, depending on the specialty selected, that a medical doctor needs to be taught by a drug company about cross contamination? It is troubling that the plaintiffs here settled with the obvious defendants — the medical professionals whose behavior gave them the virus— in some cases for nothing. That cleared the way for them to go after the big money at Teva and Baxter. The jury wasn’t allowed to hear evidence on that, either. In short, the jury was asked to render a verdict without hearing the full story because of a series of legal errors by the court. Finally, I understand the magnitude of Hepatitis C and how acquiring the virus impacted the lives of the victims adversely. However, the claims of a complete loss of enjoyment of life and forced celibacy are just hard to believe. But inflammatory statements like that sway juries to be more generous.
If "the question is whether Teva acted reasonably under an objectively reasonable manufacturing standard," tell me how acting in accordence with federal guidlines is an unreasonable course of action. It was completely reasonable for Teva to assume that liscenced medical personell would follow long standing medical protocols in order to avoid cross contamination. How is it unreasonable for Teva to expect medical professionals to act more recklessly that your average street junkie? It isn't, and that is why Eglet called in the markers he earned contributing heavily to the judges' campaigns to make certain that the jury was given as little information about what really happened at the ECSN. It is also why even a veteran plaintiffs' lawyer like Justinian Lane, (a man who's never met a lawsuit against drug companies he didn't like), sees this as a travesty that will have serious repercussions - especially now that Republicans run the House. Eglet and his greedy clients are going to be the perfect example used by an enterprising Congressman to help pass a bill that will make it harder for future victims to sue companies that are actually harming people.
"Wow...even after being presented with clear case law that holds that Teva's liability ceased to be an issue the moment Desai and his staff chose to ignore the clear warnings about against multi-use of the vials in question, you still claim that the jury's verdict was based on the law. Despite the fact that when asked what lead them to their verdict multiple jurors stated reasons that directly contradict the law, you still think that anyone believes that this verdict was based on current statues. While, you are right, in the end the labels did not offer these people any real protection. But, like it or not, that was all that was required of them. I have yet to hear you cite what Desai was set on ignoring safety guidelines in order to save a buck. While you claim that Teva "knew their product was being misused and causing injuries," I am curious as to why the individual who alertyed Teva of Desai's actions didn't also alert the proper authorities? Perhaps because no matter how many times you say it there was not evidence that Teva knew how Desai was using his products.