Drugmakers found liable in hepatitis case

Two drug companies must pay a Henderson man and his wife more than $5 million after a jury found them liable in the first civil trial stemming from Southern Nevada's hepatitis C outbreak.

After deliberating for three days, the jury ruled that Teva Parenteral Medicine and Baxter Healthcare Services, which made and sold the sedative propofol, failed to label drug vials with appropriate warnings and should not have provided large vials of the anesthetic to endoscopy centers.

Henry Chanin, 62, and his wife, Lorraine, sued the companies on several product liability claims related to propofol, the sedative used when he received a colonoscopy in 2006 at the Desert Shadow Endoscopy Center during which he was infected with hepatitis C. The center is one of two Las Vegas clinics linked to the hepatitis outbreak.

The jury awarded $3.25 million to Henry Chanin and $1.85 million to Lorraine Chanin.

During the three-week trial, Henry Chanin testified that he suffers from joint pain and fatigue and has stopped having sex with his wife because of worries about spreading the infection.

"It shows we were right all along, that this whole disaster started with these drug companies," said Robert Eglet, Henry Chanin's lawyer. "Justice was done."

The companies plan to appeal.

The jury will return to court this afternoon for a hearing on punitive damages, which together with Wednesday's verdict could sway the future for the hundreds of pending outbreak-related lawsuits.

"It's a significant and substantial verdict," said William Dressel, president of the National Judicial College in Reno. "It will give cause to the parties that it would appear to be beneficial to sit down and talk about the remaining litigations and what options exist."

The Chanins' lawyers argued that the drug companies endangered public safety by producing vials of propofol that were much larger than necessary for typical endoscopic procedures, which enticed nurse anesthetists to reuse the vials among patients instead of throwing away leftover sedative.

Local health officials said the outbreak was caused by nurse anesthetists reusing vials among patients after the vials had become contaminated by the nurses reusing syringes on the same patient.

Henry Chanin's case was one of nine linked to the two Las Vegas endoscopy clinics by health officials, who in 2008 notified 50,000 patients about possible exposure to hepatitis, HIV and other blood-borne diseases because of unsafe injection practices at the clinics run by Dr. Dipak Desai.

Patty Aspinwall, one of seven patients whose hepatitis C infection has been genetically linked to the Endoscopy Center of Southern Nevada, sat in the courtroom for most of the Chanin trial. She was home on her couch Wednesday afternoon when a friend called about the verdict being reached.

Aspinwall showered and rushed to the courthouse to hear the verdict read.

"Until the verdict came in, I wondered if anybody understood what we've been through," said Aspinwall, who like Henry Chanin worries constantly about spreading the virus to loved ones. "I think my heart stopped when they read the verdicts."

Aspinwall said Desai and the nurses who gave her the propofol share responsibility for the outbreak, but so do the drug companies. She said she hopes they don't appeal the verdict.

"They need to own up to what they've done and help take care of us," she said.

Throughout the case, drug company lawyers explained that the larger vials of propofol were not dangerous and gave medical professionals the choice to decide which size was appropriate for their procedures and patients.

In a statement released after the verdict, Teva spokeswoman Denise Bradley said her company was not responsible for Henry Chanin's infection.

"If Mr. Chanin contracted hepatitis C as alleged in this case, it could only have been the result of product misuse and a failure to follow the product's warnings and labeling," she said. "Unfortunately, the jury was not allowed to hear most of the relevant evidence about what actually happened in this case."

Before trial, District Judge Jessie Walsh ruled that the drug companies were not allowed to use the "dirty doctor" defense and blame the infection on doctors and nurses misusing the drug.

The decision was based on Nevada's product liability laws.

The doctor and nurses who performed Henry Chanin's colonoscopy were originally named in the lawsuit, but they settled their medical malpractice claims a few weeks before trial.

Meanwhile, a grand jury has been hearing evidence for possible indictments of Desai and other clinic employees.

Wednesday's verdict gave reason for optimism for lawyers representing infected clinic patients.

Attorneys Patti Wise and Billie-Marie Morrison both said they have upcoming cases that are likely to portray the drug companies in a worse light.

In those cases, the patients are in poorer health than Chanin, and their hepatitis infections have been genetically linked to the endoscopy clinics, they said.

"Seeing this verdict and the verdict numbers is encouraging to us, because I think maybe we can do better," said Morrison, who represents Aspinwall.

Added Wise, "Whatever it takes, two or three more verdicts, we're in this for the long haul."

Review-Journal reporters Jeff German and Paul Harasim contributed to this report. Contact reporter Brian Haynes at bhaynes@reviewjournal.com or 702-383-0281.

Trending topics:

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• Chanin
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• propofol

Comments

Note: Comments made by reporters and editors of the Las Vegas Review-Journal are presented with a yellow background.

1. Travis.Palmer May 7, 2010 | 2:40 p.m. Report Abuse

   What i fail to grasp is why?? Why didnt the nurses pour the propofol into single use sterilized containers for distribution to patients? Leaving the main container to be used again without contamination? Hmmmmmmm

2. patrick May 7, 2010 | 9:17 a.m. Report Abuse

   TimetoCapLawyerSalary:
   
   You are consistent, you know nothing of the law, you know nothing about the legal system, and you know nothing about lawyers; congratulations a perfect score!
   
   And by the way, you've made not a single argument but you have demonstrated your complete lack of ability both to understand or even caring about the law that was properly construed in this case; congratulations yet another perfect score!
   
   Go back to the circus.

3. patrick May 6, 2010 | 10:18 p.m. Report Abuse

   Mike H.:
   
   Boy did you show me; I'm humbled.
   
   Now maybe with your obvious ability to comprehend the law, you can explain exactly and precisely which elements of a product defect case were not satisfied based on the evidence that we are aware of.
   
   We can do the analysis as we go along here and maybe I can learn something from you.
   
   We'll see.
   
   Good luck!
   
   Let me give you a word of advice though; don't use generalizations like "Many people have died of such behavior" cause you make yourself look, well, dumb unless you got some facts to back this up. Vague generalizations are fine when your talking to your 5 year old, but they don't hold much weight in court and I'm not even going to get into "Drinking a keg of beer, or an entire bottle of whiskey is probably more dangerous than reusing Propofol vials."
   
   I mean, I'm sure you have well-known "experts" among your family who have direct experience with this, but proof is going to be required to get you past a motion for summary judgement.
   
   And, geez man "no one uses these (sic) such language at all anymore"? If your going to go through this, you must try and use English, cause I don't speak gibberish. Thanks in advance!

4. map0621 May 6, 2010 | 8:52 p.m. Report Abuse

   I'm sure the judge and jury followed the law but the law is flawed. I don't think anyone can honesty say that one party should pay for the negligence of another. The clinic had the option to buy smaller vials. And if you don't like that argument, the drug companies didn't force the doctors and nurses to use the same needle on multiple patients. That's what caused the hep c. Not the size of the vials.

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