Friedman | Rubin Wins $104 Million Verdict Against Drug Manufacturer and Distributor

Las Vegas, NV

Having awarded $14 Million in compensatory damages to a Nevada couple on Monday, a Clark County jury added $90 Million in punitive damages today.

Friedman | Rubin’s clients, Michael and Josephine Washington, a 71 year old retired U.S. Air Force mechanic and his devoted wife, were each awarded $7 million for his contracting Hepatitis C at a Las Vegas endoscopy clinic and for her resulting loss of consortium. It was alleged that the defendants, Teva Parenteral Medicines Inc. (Teva), a division of the largest generic drug manufacturer in the world, and its distributer Baxter Healthcare Corp. (Baxter), had recklessly marketed Propofol, a drug used to sedate patients for surgical procedures. Internal documents and company filings with the FDA showed that the companies knew the larger vial sizes of 50 and 100 mL of Propofol were often mistaken by health care practitioners as multi-dose vials and that multi-dosing from these vials carried a extraordinary risk of spreading disease from patient to patient due to the drug’s unique properties. Recognizing there were safer, practical alternatives to the larger vials, Teva and Baxter nevertheless steered its marketing toward 50 and 100 mL vials, discontinuing less profitable, but safer, alternatives. Teva and Baxter even encouraged misuse by distributing Propofol with a multi-dose spike. Over the years, reports of multi-dosing and the spread of disease from these large vials continued, but Teva and Baxter did nothing to address the problem, despite agreement in the medical community that multi-dosing from large vials was to blame. Compounding the problem, Baxter largely discontinued its force of sales reps and the direct doctor consultations regarding safety that they provided in favor of more profitable direct marketing over the internet.

In 2007, a large outbreak of Hepatitis C occurred in Las Vegas, which health authorities traced to the multi-dosing of Propofol at two endoscopy clinics. Over 50,000 people were placed at risk, and over 100 contracted Hepatitis C including Michael Washington.

At trial, Teva and Baxter insisted that they had no responsibility beyond labeling the vials “single use only.” They contended that the healthcare practitioners at the now defunct Las Vegas clinics were entirely to blame. However, as Rick Friedman argued to the jury, the label was simply not big enough to hide their reckless decisions. Both companies were well aware that endoscopy centers had a propensity to multi-dose and had no need for vials over 20 mL. Both companies could have easily avoided harm simply by limiting sales to endoscopy clinics to 20 mL vials or less. Teva could have continued to produce smaller safer vials and prepackaged syringes. Choosing profits over patient safety was the wrong choice, as the jury’s verdict made clear. The jury ordered Teva to pay punitive damages of $60 Million and Baxter, which no longer distributes Propofol, was ordered to pay $30 Million. This award was # 7 in the Top Ten Jury Verdicts for 2011.

Washington v. Endoscopy Center of Southern Nevada LLC, 07A572224, District Court for Clark County, Nevada (Las Vegas). Plaintiff’s trial team was led by Rick Friedman, and included Lincoln Sieler and William Cummings, all of Friedman | Rubin, and also Nevada co-counsel Patti Wise of Edward M. Bernstein and Associates and Matt Sharp.