Jury deliberates in first hepatitis C case to reach trial

By Cara McCoy

Published Friday, April 30, 2010 | 12:47 p.m.

Updated Friday, April 30, 2010 | 6:09 p.m.

Jury deliberations have begun in the first civil trial stemming from the hepatitis C outbreak linked to Las Vegas endoscopy clinics.

Eight jurors began their deliberations at about 4:30 p.m. Friday. Deliberations will resume Monday morning.

Robert Eglet, who represents Henry Chanin, asked jurors during his closing arguments Friday to award $8.5 million in damages.

He wants jurors to find Teva Parenteral Medicines Inc. and Baxter Healthcare Corp. liable on several product defect claims. The two companies made and distributed, respectively, the anesthetic propofol used at Desert Shadow Endoscopy Center, where Chanin was infected with hepatitis C during a routine procedure in 2006.

In his closing arguments, Eglet argued the large size of the vials used in the clinics led to reuse, or “double-dipping,” thereby causing contamination and leading to infection. He said the drug companies put profits ahead of patient safety by not encouraging the use of smaller vials at endoscopy clinics.

Eglet called the vials “weapons of mass infection.”

“These companies acted with a conscious disregard for the rights and safety of the people of this community and they must be made to understand that they can’t do it again – here or anyone else – and anyone else in their position should be deterred by your verdict from ever, ever putting this or another community like this at risk,” Eglet said in closing.

Will Kemp, who represents Chanin’s wife, Lorraine, in the suit argued the warning labels on the vials were inadequate. He asked jurors to award damages of about $2 million for Lorraine Chanin.

He argued the drug companies put profits ahead of safety when they stopped manufacturing the 10-milliliter vials of propofol and ignored problems caused by reuse of the larger vials, even in spite of hepatitis C outbreaks in other communities.

The Chanins testified during the trial that they are no longer intimate for fear that Lorraine could become infected. Kemp reminded jurors about how their relationship had suffered, saying that “basically, she’s a nun” for the rest of her life.

“You lose the man of your dreams, you’re living with an infected partner … what’s the damages for this?” Kemp rhetorically asked the jury.

Dr. Stan Smith, an expert witness in economic damages, testified during the trial that based on the losses Henry and Lorraine Chanin suffered as a result of him contracting hepatitis C, compensation between $1.6 million and $2.3 million would be appropriate for Lorraine.

He put a dollar figure of between $4 million and $5 million on the Chanins’ ordeal. The attorneys are seeking additional money in punitive damages.

About 50,000 people were notified they needed to undergo testing for hepatitis C, hepatitis B and HIV after an investigation in 2008 by the Southern Nevada Health District led officials to determine the outbreak of hepatitis C was caused by the reuse of single-dose propofol vials among patients. Nurse anesthetists would reuse syringes on the same patient and the vials became contaminated.

The suit claims the large size of the vials led them to be reused instead of discarded.

The suit is for product liability and other claims. Portions of the lawsuit, including parts that named the medical professionals who performed the procedure when Chanin was infected, have been settled.

“We depend on these large-scale manufacturers to keep us safe in everything we consume,” Eglet said in his arguments. He pointed to portions of testimony from the trial in which numerous witnesses said that 50-milliliter vials of propofol weren’t appropriate for use in endoscopy clinics.

Most of the procedures performed at such clinics involve short procedures where significantly less anesthetic is required, he said, adding that Chanin’s procedure had taken only 10 minutes.

Lawyers for the drug companies say the warning labels on the vials are clear and consistent, and that the companies aren’t responsible for Chanin’s infection.

Attorney Mark Tully told jurors the warnings on the vials and package inserts are appropriately and clearly presented.

“This is not the type of case that would lend itself to consideration of any type of punitive damages,” he said.

He said the vials were offered in numerous sizes, and that it was the health professionals at the clinics and in other health settings who opted to purchase the larger sizes.

“This is really about medical professionals making choices about how they want to do their procedures,” he said.

Chanin is the headmaster at The Meadows School, a nonprofit, private school in the northwest valley that serves students from pre-kindergarten through 12th grade.

Chanin said from the stand this week that his hepatitis was controlled after weeks of grueling treatment similar to chemotherapy. He said there is a 5 percent chance it could again become active. Hepatitis C can lead to liver disease, including cirrhosis or liver cancer.

Thousands sued in the wake of the health district investigation. The suit is the first to be heard by a jury.