In his closing argument in Chanin v. Desert Shadow Endoscopy, plaintiff attorney Robert Eglet, arguing the product liability defective design case, reminded the jurors that Craig Lea, the head of development for all of Teva in the United States, had testified that 10ml vials of Propofol were safer for use in endoscopy centers because they reduced the risk of multi-dosing, and that using 50ml vials was more risky.
According to Mr. Eglet, neither Craig Lea nor anyone else provided any evidence of the safety benefits of 50ml vials in endoscopy centers, because there are none. Eglet replayed for the jury videotaped trial testimony of Mr. Lea's inability to answer the yes-or-no question, "In endoscopy centers, the risk of health care providers dosing multiple patients from a single 50ml vial outweights any benefits of the design in an endoscopy center because the 10ml and 20ml vials are safer?"
Eglet reminded the jury that they were legally required to accept the defendants' May 2000 admission, in an FDA filing, that the smaller vial size was safer.
"In May of 2000," said Mr. Eglet, "more than six years before Mr. Chanin got infected, they wrote that a smaller size vial is safer in that it may reduce the temptation for dosing multiple patients from a single container thereby reducing opportunities for microbial contamination."
Plaintiff attorney Will Kemp, arguing the failure to warn case, reviewed five different reasons why Teva and Baxter allegedly provided inadequate warnings. Mr. Kemp reviewed videotaped testimony of executives from both Teva and Baxter stating that the CDC suggested warning label was better or more precise than the actual warning on the propofol vials in question.
As to damages, Mr. Kemp argued that Mr. Chanin had to undergo chemotherapy, and there was a 5% chance that the hepatitis would return. Moreover, as a result of the heptatitis Ms. Chanin basically had to live without intimacy, like a nun.
Defense attorney Mark Tully argued, "Nothing was wrong with the propofol in the bottle that was made by Teva and distributed by Baxter." According to Tully, one of the most important questions in the case was, How much Propofol is a enough? Mr. Tully argued that there is no such thing as a typical procedure, and only the medical professionals can decide whether 10ml is enough in any particular procedure that might be done in an endoscopy center.
Moreover, said Mr. Tully, the label warning advocated by the plaintiffs "was not a better warning at all. In some ways, it's a worse warning."
The jury posed two questions on May 3: first, what was the relationship between Instruction 13 (design is defective if unreasonably dangerous) and Instruction 16 (reasonableness of manufacturers' conduct not to be considered in assessing reasonableness of danger); and second, whether the package inserts were the same for each vial size.
On May 5, the jury found that Teva and Baxter were both liable on theories of failure to warn, and breach of implied warranty of fitness for a particular purpose, but not liable on a strict liability theory for a defective product design.
The jury also found that both defendants were liable for punitive damages.
The jury awarded $3.25M compensatory damages to Henry Chanin, and an additional $1.85M to Lorraine Chanin for loss of consortium.
The punitive damages phase begins tomorrow at 1pm.