Teva, Baxter Sued in Hepatitis C Outbreak Case
ENDOSCOPY CENTER OUTBREAK: Hepatitis C case goes to trial: Other litigants await outcome for first plaintiff [Las Vegas Review-Journal]
From Las Vegas Review-Journal (NV) (April 12, 2010)
Apr. 12--Robert Eglet calls it a modern-day David and Goliath.
His client, infected with hepatitis C, and his Las Vegas law firm going head to head with one of the largest drug makers in the world and its international law firm.
It’s a battle that began more than two years ago after local health officials announced a hepatitis C outbreak linked to Las Vegas endoscopy clinics. Investigators said the outbreak was caused by nurse anesthetists who were reusing single-dose vials of anesthetic between patients at the Endoscopy Center of Southern Nevada and its sister clinics.
Hundreds were infected and thousands sued, including Henry Chanin, upper school director at The Meadows School in northwest Las Vegas.
Today , Chanin’s lawsuit will be the first to go to trial.
And as the first case to go before a jury, it will be closely watched. Depending on the outcome, it could nudge the mass litigation toward a drawn-out legal fight or a global settlement, lawyers said.
"All eyes are going to be on those guys," lawyer Billie-Marie Morrison said of Eglet and of Will Kemp, who represents Chanin’s wife. "If they can prevail in Chanin, you can prevail in any case."
Chanin, 61, went to the Desert Shadow clinic on Burnham Avenue in June 2006 for a colonoscopy and within days was suffering the symptoms of acute hepatitis C, which attacks the liver. A blood test he took two days before his colonoscopy was negative for hepatitis C.
Southern Nevada Health District investigators eventually linked Chanin’s infection to the Desert Shadow clinic, though it has not been genetically linked to other cases.
Most of the lawsuits filed by patients named doctors and nurses who performed the procedures on them. The lawsuits also named Teva Parenteral Medicines Inc., which made the anesthetic propofol used in the procedures, and Baxter Healthcare Corp., which distributed propofol, under product liability claims.
In the past month, medical defendants in Chanin’s case, including Dr. Rajat Sood, settled their end of the case and will not be involved in the trial, Eglet said.
The settlement terms are confidential, but state law limits pain and suffering damages in medical malpractice lawsuits to $350,000.
That leaves the drug maker and distributor, who are responsible for the outbreak because they sold the clinics large bottles of propofol containing five times the amount needed for a typical colonoscopy, Eglet said.
"Them selling these vials to the endoscopy centers is really what started the whole chain of events," he said.
Only about 10 milliliters of propofol is required for short medical procedures such as colonoscopies, which take about 15 minutes. Teva used to sell the 10 milliliter vials of the milky liquid, but it stopped making the small vials because it was cheaper to make 50 milliliter vials, Eglet said.
The larger vials are intended for long surgeries, yet they were sold to colonoscopy clinics despite a "foreseeable misuse," he said.
"Do you think any of these endoscopy centers are going to use 10 mL and throw the rest away? Of course not, and the manufacturers knew that," Eglet said.
Teva was aware of the potential danger, having logged 148 previous hepatitis C infections blamed on reuse of single-use vials of propofol, he said. "They knew it was a problem. They knew there was multidosing with these vials."
Chanin’s lawsuit also claims the drug maker didn’t put proper warnings on the drug labels.
Teva denies the claims, saying its labels and packages warned against reusing vials of propofol among multiple patients, said Denise Bradley, senior director of North America Corporate Communications for Teva Pharmaceuticals.
"If plaintiffs’ counsel are correct as to what happened, it is unfortunate, but not in any way a result of Teva’s conduct or its propofol product," Bradley said in an e-mail.
Teva Pharmaceuticals, based in Israel, is one of the largest generic drug makers in the world and last year posted record sales revenues of $13.9 billion.
"When you have a defendant making that much money, they could walk and settle all these cases," Kemp said.
Jury selection in the case begins today and is expected to last through the end of the week. Opening statements are set for April 19, though they could be pushed back if jury selection goes longer than expected. The trial is expected to last about four weeks.
One of Morrison’s clients, a former Endoscopy Center patient with hepatitis C, plans to sit through the entire trial to get a taste of what to expect with the ebbs and flows of a trial. A few more clients will attend as much as possible.
Morrison also will be in the courtroom often, watching the jury’s reactions and studying the defense strategy.
"This is definitely a bellwether case for all of us," she said.
Contact reporter Brian Haynes at email@example.com or 702-383-0281.
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Posted: April 2010