Jury Awards Couple $104M in Nevada Hepatitis Case

By KEN RITTER | October 14, 2011

A Nevada jury found drug companies liable Wednesday for $104 million in damages in a third product liability lawsuit stemming from a hepatitis C outbreak four years ago at Las Vegas outpatient colonoscopy clinics owned by a doctor now facing state and federal criminal charges.

The same Clark County District Court civil jury that on Monday awarded $14 million in compensatory damages to Michael Washington and his wife, Josephine Washington, spent less than two hours deliberating before deciding Teva Parenteral Medicines Inc. should pay the couple $60 million in punitive damages and Baxter Healthcare Corp. should pay $30 million.

Michael Washington, 71, a retired Air Force technical sergeant and Vietnam War veteran, declared himself relieved after four years of medical uncertainty, untold strain on his 31-year marriage and the more than four-week trial.

He alleged in his February 2008 civil lawsuit that he acquired hepatitis C during a colonoscopy in July 2007.

“This jury made a wise and good decision,” he said outside the courtroom. “What came out in this trial, no one else should have to go through.”

Israel-based Teva promised to appeal. It called the Las Vegas legal system “broken” and said jurors have been prevented from hearing the company’s defense.

Deerfield, Ill.-based Baxter didn’t immediately respond to messages seeking comment.

Patti S. Wise, lawyer for the Washingtons, noted that Wednesday’s was the third jury verdict of more than $100 million in separate but similar Las Vegas product liability cases overseen by different judges.

Teva and Baxter already have an appeal pending before the Nevada Supreme Court, seeking to void a $500 million jury award in May 2010 to a Las Vegas private school headmaster who was infected with hepatitis C and his wife.

Teva has also promised to appeal a $182.6 million verdict awarded days ago to five plaintiffs in a case in which pharmaceutical distributor McKesson Corp. was also found liable.

Plaintiffs’ lawyers allege the drug companies chose profits over patient safety by delivering large vials of the powerful anesthetic propofol to clinics owned by Dr. Dipak Desai. They argue the large supply encouraged clinic doctors and nurse anesthetists to reuse the large vials during successive anesthesia procedures – despite the danger of spreading blood-borne illnesses from one patient to the next.

The companies maintain the drug was properly manufactured and delivered, and that clinic owners and employees could have spread infection through unsafe practices and procedures.

“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,” Teva spokeswoman Denise Bradley said. “Teva should not be held liable for the blatant disregard for patient safety by the medical professionals at their facility.”

“While the mistreatment of patients is unacceptable,” she said, “it was not Teva’s fault.”

Wednesday’s damages award came while jury selection continued in another Las Vegas courtroom in a fourth similar civil product liability case against drug companies spawned by the hepatitis C outbreak.

Desai was once a prominent gastroenterologist and Nevada State Board of Medical Examiners member. He and two former clinic employees face state racketeering, insurance fraud and neglect of patients’ charges that could put them in prison for the rest of their lives. Each has pleaded not guilty. Desai is free on $1 million bond.

Desai and his former chief clinic business executive also face federal fraud charges alleging they overbilled health insurance companies.

But Desai has not been a defendant in the civil trials.

His lawyers are waging a court battle to prove he is physically and mentally incapacitated by strokes and heart ailments and unfit for trial.

His clinics – Desert Shadow Endoscopy Center, Endoscopy Center of Southern Nevada and Gastroenterology Center of Nevada – filed for Chapter 7 bankruptcy liquidation in July 2009.

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