Las Vegas Sun

September 24, 2017

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State Supreme Court to allow ‘Dear Doctor’ letter as evidence in Hepatitis lawsuits

The Nevada Supreme Court has refused to issue an order stopping the introduction of a key and disputed piece of evidence in the trial involving the 2008 Hepatitis outbreak in Las Vegas.

The drug companies filed a petition in the Supreme Court to stop the introduction of a "Dear Doctor" letter that should have been sent by the firms. The letter carries additional warnings on the use of the drug, in additional to the federal labeling.

The companies argued that the U.S. Supreme Court has issued a ruling that would not require them to send a additional warnings beyond what the federal law requires.

The Nevada Supreme Court, however, refused to overturn the order of District Judge Jerry Wiese.

In the present case, Patty Aspinwall, Carol Keck and Megan and Thomas Gasper are suing the drug companies on the theory that defective vials of the anesthetic Propofol were to blame for the outbreak. The suit maintains the size of the vial distributed to the Endoscopy Clinic of Southern Nevada led to them being reused. The workers at the clinic reportedly injected needles contaminated with hepatitis C into the vials of Profofol, then reused those vials.

Attorneys for the drug companies say Judge Wiese is refusing to follow the ruling of the U.S. Supreme Court. The Nevada Supreme Court, in denying a writ of mandamus or prohibition, said its intervention at this point is not warranted.

Filing the petition were Sicor, Inc; Teva Parenteral Medicines, Baxter Healthcare Corp. and McKesson Medical-Surgical Inc.

The companies said they have settled dozens of Endoscopy Center cases. But this ruling by Judge Wiese makes it impossible to "reasonably value such claims," they said.

Attorney Daniel Polsenberg, representing the drug companies, wrote in his brief: "In short without this (Nevada Supreme) Court's immediate intervention the Clark County courts, the public and the parties will be forced to continue expending tens of millions of dollars to adjudicate claims the U.S. Supreme Court precluded — and then relitigate these cases all over again when this court or barring that the U.S. Supreme Court restores order."

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