CARSON CITY, Nev. (AP) — The Nevada Supreme Court heard
arguments Monday that will set the ground rules for testimony in hundreds of
expected civil trials against two drug companies stemming from a hepatitis C
outbreak in Las Vegas.
Lawyers for Teva Parenteral Medicines Inc. and Baxter
Healthcare Corp. told justices that jurors should be allowed to hear about
possible causes other than the size of vials of the anesthetic propofol that
could be linked to the spread of the liver disease at colonoscopy clinics run
by Dr. Dipak Desai.
But lawyers for patients who underwent procedures at the
clinics countered that would be akin to throwing up a “multitude of horrors”
for jurors to consider without a reasonable degree of probability of actual
cause.
Henry Chanin, headmaster of a private school run by the wife
of Las Vegas’
mayor, contracted hepatitis C in 2006 during a routine procedure. His lawyers
argued that vials of propofol provided to the clinic were larger than necessary
and invited use for multiple patients.
Last year, jurors ordered the companies to pay a combined
$500 million in punitive damages to Chanin and his wife, Lorraine. Jurors found the companies responsible
for breach of implied warranty and failure to warn.
Drug company lawyers have maintained that the vials were
properly marked with instructions and warnings, and that jurors were not
allowed to hear that practices by Desai and staff, such as reusing syringes on
multiple patients and not following proper sterilizing procedures, could also
have spread the disease.
Southern Nevada health
officials advised about 50,000 patients who received endoscopy procedures at
the clinics to be tested for hepatitis. At least nine and as many as 114
patients were infected with the disease.
Desai and two nurses were indicted on criminal charges,
including racketeering, insurance fraud and neglect of patients. Trial has been
delayed until next year.
The Chanin case is under appeal. But more civil cases are
working their way through the courts. The Nevada Supreme Court agreed to hear
arguments on allowable expert testimony after two judges in Las Vegas gave conflicting rulings in
separate cases.
Clark County District Judge Kathleen Delaney said the drug
companies would be allowed to offer their alternative theories on how patients
were infected, including the unsanitary conditions and reusing single-patient
equipment on multiple patients.
District Judge Timothy Williams ruled just the opposite,
concluding that testimony from a nurse and other witnesses about dirty scopes
or equipment would not be allowed.
During Monday’s oral arguments, Robert Eglet, an attorney
representing the Chanins and other plaintiffs, said nurses are not recognized
by courts as experts able to testify on a medical cause.
“The defendants are asking this court to stand
alone,” he said, adding that Nevada
law requires physicians to make a medical finding of causation.
But Daniel Polsenberg, arguing for Baxter and Teva, said the
nurse should be allowed to testify about conditions that could lead to the
spreading of disease. He said doctors could then testify about specific cause.
The court took the arguments under submission.
