Teva Pharmaceutical Industries Ltd. (TEVA), the world’s biggest generic-drug maker, was accused by lawyers at a Nevada trial of putting profit ahead of the safety of colonoscopy patients who got the company’s Propofol anesthetic from reused vials.
Teva, along with drug distributors Baxter International Inc. (BAX) and McKesson Corp., marketed Propofol in “jumbo-sized vials” knowing it would entice doctors to reuse the containers and increase the spread of blood-borne diseases, Robert Eglet, a lawyer for colonoscopy patients who developed hepatitis after getting the medicine, told a Las Vegas jury yesterday.
“Responsible drug companies should not put profits above patient safety,” Eglet said in closing arguments in the Nevada state court trial of three patients’ lawsuits. “It’s undisputed that these larger vials provided the temptation and the opportunity” for reuse, he added.
Teva faces almost 300 lawsuits stemming from a hepatitis C outbreak three years ago in southern Nevada, the Petach Tikva, Israel-based company said in a regulatory filing last month. Nevada health officials blamed the reuse of Propofol vials for infecting patients with the incurable liver disease. The trial of the first case against Teva and Baxter last year resulted in a verdict of more than $500 million against the drugmakers.
Teva’s lawyer countered that improperly sanitized medical equipment, not reused Propofol containers, caused some Nevada colonoscopy patients to develop hepatitis.
Because of the number of daily procedures being done by some clinics it was “often impossible to properly clean” medical equipment, Mark Tully, one of the drugmaker’s lawyers, told jurors yesterday in his closing argument at the trial, which started more than a month ago. “There were multiple failures to follow proper medical procedures,” he added.
Probes by Nevada health officials and the federal Centers for Disease Control and Prevention blamed the reuse of Propofol vials for infecting patients with the incurable liver disease.
Propofol is an intravenous agent used for sedation or anesthesia, according to Teva’s website.
Last year, a state grand jury indicted Dr. Dipak Desai, who ran the Endoscopy Center of Southern Nevada at the time of the outbreak, on criminal charges. Many of the hepatitis-related cases were linked to that colonoscopy clinic. Desai also faces federal charges over the outbreak.
Teva manufactures Propofol and San Francisco-based McKesson Corp. (MCK) is its current U.S. distributor. Baxter, based in Deerfield, Illinois, sold the drug for Teva until 2009, according to court filings. Teva has agreed to cover all damage claims arising from the cases on behalf of the distributors, according to court filings.
In the first Propofol case against Teva, a Las Vegas jury awarded Henry Chanin, a private-school principal, and his wife $5.1 million in compensatory damages and $500 million in punitive damages against Teva and Baxter. Chanin argued he developed Hepatitis C after getting tainted Propofol during a colonoscopy.
Jurors ordered Teva to pay $356 million of the punitive damages award while assessing $144 million of the award to Baxter. Teva officials have asked the Nevada Supreme Court to throw out Chanin’s verdict
Three other Las Vegas residents, Anne Arnold, Richard Sacks and Anthony Devito, contend Teva’s 50-milliliter Propofol containers aren’t designed as single-use vials and the drugmaker didn’t properly warn doctors about the dangers of “double dipping” into the anesthetic.
The company ceased making smaller Propofol vials because the larger containers were more profitable, lawyers for the three colonoscopy patients contend in court filings. Doctors and staff attempt to save money by reusing the vials and can pass along contaminated amounts of the drug, they argue.
Eglet and Will Kemp, another Las Vegas lawyer representing the colonoscopy patients, indicated during jury selection in Arnold’s, Sacks’s and Devito’s case that they may seek more than $600 million in compensatory and punitive damages in the case.
Teva currently faces another trial in the same courthouse over a suit from separate colonoscopy patient who developed Hepatitis C after receiving Propofol from a tainted vial.
In yesterday’s arguments, Eglet said Teva’s 50-milliliter Propofol containers amounted to “dangerous vials of mass infection” that had “no legitimate purpose” at clinics offering colonoscopies.
“If there’s more than one way to package a product, a responsible drug company should choose the safest one,” Eglet told jurors in his case yesterday. “That is the law.”
Tully countered that federal regulators approved the sale of Propofol in larger containers and said Teva wasn’t responsible for the misuse of the vials by medical personnel.
“Any size vial is safe if it’s used properly,” Philip Hymanson, a lawyer for Baxter and McKesson, said in his closing argument. “We’re never really going to know what happened in those clinics.”
The case is Sacks v. Endoscopy Center of Southern Nevada LLC, 08A572315, District Court for Clark County, Nevada (Las Vegas).
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