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Clark County, Nevada

Clark County, Nevada

Clark County, Nevada quickly moved from the Watch List to the #6 position in the Judicial Hellholes report last year upon the announcement of an insane half-billion dollar verdict. And as Casey Kasem, formerly of America’s Top 40 might have said, “the hits just keep on coming….”

As readers may recall, the $500 million verdict in May 2010 stemmed from the unsanitary practices at the Desert Shadow Endoscopy Center, which used vials of the anesthetic Propofol for multiple colonoscopy or endoscopy patients, ignoring the federally approved label warning against such practice. The verdict, however, placed much of the responsibility for a resulting outbreak of Hepatitis C on the drug’s manufacturer, Teva Pharmaceutical Industries, and its distributor, Baxter Healthcare Services. They were left holding the bag when the criminally indicted and bankrupt owner of the clinic, Dr. Dipak Desai, settled with the husband-and-wife plaintiffs a few weeks before trial.

The targeted “deep pockets” were held liable simply because they sold Propofol in a 50ml vial, in addition to 10ml and 20ml sizes, when typical procedures require 20ml or less. Reportedly biased rulings of District Judge Jessie Walsh kept jurors from learning about the allegedly criminal conduct of clinic staff and the fact that the drug’s warning label could not have been changed without FDA approval. This effectively stripped the companies of their defenses. Perhaps not coincidentally, finance records show that, just months before she was randomly assigned the case, Judge Walsh’s reelection campaign received $40,000 from the plaintiffs’ lawyer and others at his firm. The Nevada Supreme Court has not yet ruled on the defendants’ pending appeal.

Early in the year, two similar cases heading to trial were put on hold by the state’s high court after Clark County Judge Kathleen Delaney ruled that the companies could introduce evidence of the clinic’s systematic misconduct, while her colleague, Judge Timothy Williams, would have kept from the jury some of the key facts surrounding the case.

Then came a whirlwind week in October that included two more massive verdicts, cementing Clark County’s Judicial Hellholes status.

  • Thursday, October 6: The same law firm that won the $500 million aimed higher, asking a jury that had already awarded $20.1 million in compensatory damages to three clinic patients and two spouses to award an additional $739 million in punitive damages against the pharmaceutical companies.
  • Monday, October 10: The jury returned a $162 million punitive damages award. (But in the go-for-broke, casino-like mindset of certain Clark County personal injury lawyers, one must wonder if this gigantic add-on award was at least a little disappointing.)
  • Tuesday, October 11: Dr. Desai and his lawyers challenged his competency to face the criminal charges brought by the state against him. Earlier in the year, the former clinic owner was ordered admitted to the state’s mental hospital after a court-appointed psychiatrist and psychologist found him mentally incompetent. Six months later, doctors found him competent, concluding he was exaggerating the effects of two strokes he had suffered in 2007 and 2008. Prosecutors said Dr. Desai’s behavior was an act. Dr. Desai is tentatively scheduled to face state criminal charges next March.
  • Wednesday, October 12: Another clinic patient and his wife received a $104 million award, including $90 million in punitive damages and $14 million in compensatory damages, against Teva and Baxter.
  • Thursday, October 13: Dr. Desai pleaded not guilty to federal charges stemming from the hepatitis C outbreak. A separate federal trial for conspiracy and heath care fraud is scheduled for May 22, 2012. He remains free on $1 million bail.

Though it claims it did so for manufacturing reasons unrelated to the Clark County award, Teva ceased production of Propofol just three weeks after the $500 million verdict last year. Propofol is the most common intravenous anesthetic in the United States, used for general anesthesia and for sedation because, when used properly, patients wake up quickly and side effects are rare. With Teva leaving the market, and no other U.S. production of the sedative, there are concerns about continued shortages like those that have already been reported.

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