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$739 million award sought in hepatitis C case

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.

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