Class-action lawsuit rejected in hepatitis C outbreak

After 70-year-old Eugenia Hedstrom was notified last winter by health officials that she should get tested for hepatitis and HIV, she worried about dying.

Night and day. Every day. Until she got word a couple of weeks later that tests showed she was in the clear.

"When you get a letter like that, it scares you like you wouldn't believe," Hedstrom said Wednesday as she sat in the offices of her attorney, Robert Cottle. "I had friends who got letters too, and they were scared out of their minds. It's all you think about. It's hard to do anything."

Hedstrom, like tens of thousands of Southern Nevadans from 2004 to 2008, had gone to the Endoscopy Center of Southern Nevada for colonoscopies or other endoscopic procedures.

In February, health officials said at least six people contracted hepatitis C during procedures at the clinic because staff had contaminated single-use vials of medication and used them on multiple patients. The Southern Nevada Health District urged 40,000 clinic patients to get tested for potentially fatal blood-borne diseases.

It wasn't long before lawyers sought out patients who had visited the clinic. Attorneys, believing thousands of experiences were similar to those voiced by Hedstrom, agreed to support a single class-action case for the thousands of patients who were not infected. About 6,000 former patients came forward.

With the clinic having only a $3 million insurance policy to cover such claims, Cottle said former patients wouldn't be eligible for much, but "at least they'd get some kind of compensation for their stress. If the class action covered just my 4,500 clients, each would get just a little over $600."

A judge in the case would award attorneys' fees, Cottle said.

But on Tuesday, District Court Judge Allan Earl put an end to the attorneys' plans to prepare one lawsuit with thousands of clients, denying their motion in open court to certify the class-action lawsuit.

Will Kemp, one of the lead attorneys for the plaintiffs, said he was stunned.

"I can't believe we'll be taking thousands of the same kind of cases to court," he said. "The courts will be all tied up for years."

Cottle said the judge, who hadn't issued his written order Wednesday, wasn't convinced that all the noninfected former patients wanted to be part of a class-action lawsuit. Nor was the judge sure that all the former noninfected patients had similar experiences, Cottle said.

A motion filed by defense attorneys for the endoscopy center in opposition to class certification noted that two named plaintiffs were deposed by defense attorneys and admitted they didn't suffer any mental anguish or emotional distress.

So, defense attorneys argued, it wasn't possible to claim emotional distress on a classwide basis. They also said it was unfair to argue that many former patients needed to be compensated for hepatitis and HIV testing because many had received it free.

Cottle believes defense attorneys fought certification of the class-action lawsuit solely to discourage other former patients from coming forward.

Clinic attorney Drew Cass wouldn't comment Wednesday.

Cottle said plaintiffs' attorneys can have Earl's ruling reviewed by the Supreme Court. If the ruling is not overturned, some cases could be consolidated, 60 to 80 at a time, or cases could go one by one.

"That $3 million will go real fast that way, and very few will be compensated," Cottle said.

Hedstrom isn't pleased.

"Why can't people be dealt with fairly?" she said. "I didn't ask to be put at risk. I think we deserve something for that."

Contact reporter Paul Harasim at pharasim@reviewjournal.com or 702-387-2908.