LAS VEGAS - (Mealey's) A Nevada state court jury on Oct. 12 ordered a maker and distributor of generic propofol to pay $90 million in punitive damages in a case in which a plaintiff claimed that he was infected as a result of reusable "jumbo" vials of the general anesthetic (Michael Washington, et al. v. Scior, Inc., et al., No. 08A558164, Nev. Dist., Clark Co.).
The $90 million awarded by the jury in the Clark County District Court follows a $14 million compensatory award on Oct. 10 to Michael and Josephine Washington.
In July 2007, Michael Washington, now 71, underwent a colonoscopy at Endoscopy Centers of Southern Nevada. He was later diagnosed with hepatitis C.
After local and state health investigators discovered an outbreak of hepatitis C linked to the clinics, Washington sued propofol maker Teva Parenteral Medicine Inc., subsidiary Scior Inc. and former distributor Baxter Healthcare Corp.
Washington argued that by making "jumbo" 50-milliter vials of propofol instead of single-dose vials, the defendants encouraged and allowed health care practitioners to use the vials on multiple patients. He alleged that the vial used for him was first used in a patient that had hepatitis C.
Washington said he was the fifth patient to get propofol from the same vial and said his hepatitis C virus was genetically linked to that of the first patient.
The plaintiffs went to trial on the issues of negligence and design defect. They dropped their failure-to-warn claim after the U.S. Supreme Court in July ruled that warning claims involving generic drugs are preempted by federal law (Pliva, Inc. v. Mensing, No. 09-993, 564 U.S. __ [June 23, 2011]).
Propofol is the generic version of Diprivan.
The plaintiffs argued that the defendants knew for more than a decade that the jumbo vials could result in the transmission of disease from one patient to another.
The defendants argued that Washington's infection was not caused by the jumbo vials but by health care practitioners who failed to clean medical equipment or use sterile procedures. They also argued that the Food and Drug Administration approved labeling that said the vials were for single use only.
Plaintiff sources told Mealey Publications that counsel asked the jury to award at least $5 million each to Michael and Josephine Washington for compensatory damages. During the punitive phase, the source said, the jury was asked if the $7 million it had awarded to each plaintiff included punitive damages, and the jury said it did not.
In its punitive verdict, the jury found Teva and Scior liable for $60 million and Baxter liable for $30 million.
[Editor's Note: Full coverage will be in the Oct. 20 issue of Mealey's Emerging Drugs & Devices. For all of your legal news needs, please visit www.lexisnexis.com/mealeys.]
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