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May 7A lawyer for a Henderson man infected with hepatitis C suggested Thursday that two drug companies should pay more than $1 billion for failing to take steps that could have prevented Southern Nevada's hepatitis C outbreak.
During the punitive damages stage of the first outbreak-related civil trial, Robert Eglet told the jury that Teva Parenteral Medicine and Baxter Healthcare Services should pay for continuing to make and sell large vials of the sedative propofol to endoscopy centers despite previous outbreaks being linked to the drug.
Such as award also would deter the companies and others from similar conduct in the future, Eglet said.
"This verdict has to be loud," he said, his voice climbing. "They have to be able to hear it. They have got to hear your verdict across the state. They have got to hear your verdict from the East Coast to the West Coast because they're not listening. ... Make them listen."
The jury deliberated for about 90 minutes before leaving for the day. Deliberations will continue this morning.
On Wednesday the jury found Teva and Baxter liable for the hepatitis C infection of Henry Chanin. He contracted the disease during a 2006 colonoscopy at the Desert Shadow Endoscopy Center, one of two Las Vegas clinics linked to the hepatitis outbreak.
Chanin, 62, and his wife, Lorraine, sued the companies on several product liability claims, including that the drug packaging did not include appropriate warnings against reusing vials between patients and that the 50-milliliter vials of propofol should not have been sold to endoscopy centers.
The large vials contained as much as five times the propofol necessary for typical endoscopic procedures, which tempted nurse anesthetists to reuse the vials instead of throwing away leftover sedative, their lawyers said.
Local health officials blamed the outbreak on nurse anesthetists reusing vials among patients after the vials had become contaminated by the reusing of syringes on patients who already had hepatitis C.
The jury awarded $3.25 million to Henry Chanin and $1.85 million to Lorraine Chanin in damages.
At Thursday's hearing, Will Kemp, who represents Lorraine Chanin, said the companies refused to improve the warnings on propofol despite multiple hepatitis outbreaks worldwide that were linked to reusing vials of the drug.
"The reason these defendants need to be punished is we had 148 cases over 10 years, and they didn't do anything," he said.
Kemp justified a large punitive award by pointing out that last year Teva made more than $8 billion in gross sales and Baxter made $5.4 billion. Simply taking a month's worth of revenue would equal $666 million from Teva and $453 million from Baxter, he said.
"We're not punishing homeless people here," he said. "We are punishing someone who makes $8 billion."
Such an amount would set a state record, Eglet said, and send a message to Teva, Baxter and other drug companies that they can't put profits above patient safety.
The companies knew the 50-milliliter vials of propofol were more likely to be reused between patients than the 10-milliliter vials, yet they didn't tell their sales representatives or medical workers that because they made more money on the larger vials, he said.
Drug company lawyer Mark Tully told the jury there was no need to send a message with punitive damages.
"You already sent a first very important message," he said. "You already told Teva and Baxter they have caused more than $5 million of damages in this case. We hear you."
Eglet compared Tully's plea to that of a serial car thief who only shows remorse after he has been caught. He said only a large punitive damages award would change the companies' practices and prevent future outbreaks such as the one in Southern Nevada.
"You need to send a message to Teva and Baxter that in this community, in our community, the safety of people is more important than the bottom line on their balance sheet," he said.
Contact reporter Brian Haynes at bhaynes@review journal.com or 702-383-0281.
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