Jury selection began yesterday in the first trial for the Endoscopy Center of Southern Nevada and its sister clinics. Robert Eglet of Mainor Eglet Cottle and Will Kemp of Kemp, Jones & Coulthard are representing plaintiffs, with James Olson of Olson, Cannon, Gormley & Desruisseaux representing the biggest remaining defendant, Teva Pharmaceuticals. The robed one is District Court Judge Jessie Walsh.Plaintiffs seem to have found the deep pockets in this case; they are pursuing Teva Pharmaceuticals, an Israel-based company who posted $13.9 billion in revenue last year, under the theory that Teva sold the anesthetic Propofol in bottles containing five times the amount needed for a single colonoscopy. Plaintiff's theory is that the extra amount of anesthetic in the bottles induced the Endoscopy clinic staff to reuse the bottles rather than waste the medicine.
Those crazy doctors, always looking for ways to save patients money. But really, can selling in bulk subject a manufacturer to liability? Guess we'll find out soon; opening statements are set for April 19th, and the trial is expected to last four weeks.
Makes sense to me. Do you really think that a provider/office who is paying for the whole bottle is going to throw away excess? It seems logical (though not ethical or right) for them to want to "get their money's worth." Will the jury buy it? I guess we'll see next month.
ReplyDeleteBig pharma is in trouble here. This verdict will go huge. And it certainly will benefit Eglet to have Walsh as his trial judge. Can anyone say 9-figure verdict?
ReplyDeleteAs long as you don't stick a used needle back into the bottle there is no risk of contamination. If Plaintiffs win it's going to be only because of the overall community outrage. The manufacturer didn't do anything wrong by using bigger bottles.
ReplyDeleteI'm going to go ahead and call my shot now. I'm not saying Plaintiff will win. But, I am saying that defense counsel will get absolutely railroaded by judge walsh. And when I say railroaded, I mean prison raped. Check your chastity belts in at the door.
ReplyDeleteWow, 8:03/8:30, are you serious? You're saying that the pharm should be liable for selling an item in bulk because it induced a "learned intermediary" (with fiduciary duties to the patient) into a criminal act? Who's next - Sam's Club and Costco?
ReplyDeletetrue 8:38
ReplyDeleteIs it really the drug maker's responsibility to make a bottle that can't be reused or cross contaminated. That's like saying it's the toaster oven manufacturers responsibility to make a toaster that doesn't fit in a bathtub full of water.
Or is it the doctor's and nurse's responsibility not to stick a contaminated needle back into the same bottle. Don't doctors and nurses receive some sort of training on this.
Or maybe the real problem here is somebody actually encouraged personnel to reuse bottles AND needles, as a cost cutting measure.
Nonetheless, I've seen Bob's show before, and Eglet in front of Walsh = huge plaintiff's verdict
Wow, 8:03/8:30, are you serious? You're saying that the pharm should be liable for selling an item in bulk because it induced a "learned intermediary" (with fiduciary duties to the patient) into a criminal act? Who's next - Sam's Club and Costco?
ReplyDeleteThe legal gods must love Eglet by assigning Judge Walsh to this case. This reminds me of the good ole boy system that the LA Times wrote about awhile back.
ReplyDeleteFirst, Walsh will give Eglet everything he asks for. Eglet knows what he's doing; but with Walsh there he'll get lots of evidence in that he might not get in in front of a Federal judge or a better state court judge. Next, the main defense guys in this case are from out of state - no state hometowns out of state guys like Nevada. Add to that the generally low intelligence and lack of education among typical Clark County jurors and you have a recipe for a monster verdict.
ReplyDeleteOther than maybe 8:03, I don't think anyone is saying that Eglet's claims against the pharmaceutical company are legitimate. I think what folks are saying is that because it's Eglet and Walsh and Vegas, the verdict will be huge. This is a great town in which to be a civil plaintiffs' attorney - dumb/corrupt judges, and even dumber juries.
ReplyDeleteEven as a plaintiff's lawyer myself, I'm actually surprised that tenuous theory got through the MSJ stage.
ReplyDeleteIs there corollary evidence showing a pattern of reuse among doctors to substantiate a product defect theory? How would that evidence (of widespread medmal practices) ever be produced?
Having tried a plaintiffs case in front of walsh, I agree she is dumb, but disagree the benefit of that stupidity inures to plaintiff.
ReplyDeleteForget Office Depot, I'm going to sue Georgia Pacific for putting 500 sheets of paper in a ream when I rarely, if ever, need that many pages for a copy. I keep getting paper cuts when I go to reuse the left over 497 sheets of paper. Show me the deep pockets!
ReplyDeleteIt does not matter if there are 5 doses or 5000 doses in a bottle. If you use a sterile needle EVERY TIME you take a dose from the bulk bottle, then you avoid contamination.
Just as the error is on me for not being more careful when getting another sheet from the ream, the error was on the medical provider for not being more careful in getting another dose from the bottle, NOT the paper mill or pharmaceutical manufacturer.
This case probably would not have survived summary judgment/dismissal before any other judge or in any other jurisdiction.
ReplyDeleteJust a thought, but what if, like Philip Morris in the past, they marketed a product to an innapropriate market? Should a fertilizer manufacturer think differently when Salim Mujahamed arrives in a rental van to buy 500 pounds of amonium nitrate versus farmer Joe in his tractor? Same product, clearly different uses. If amonium nitrate makers started advertising in mosques, would that concern anyone?
ReplyDeleteIf amonium nitrate makers started advertising in mosques, would that concern anyone?
ReplyDeleteUh, do you mean to suggest something about muslims in general? But I agree with the sentiment. Come on, let's face it, the doc was from Calcutta, where life is cheap and honor is short for "I got on her before her dad come home."
No, those are two different things.
ReplyDeletePhillip Morris induced children to buy cigarettes. It was willful and intentional.
Ammonium Nitrate manufacturers don’t induce terrorists to buy fertilizer. It’s not willful and intentional (at least I hope not).
Selling the fertilizer to a terrorist may be negligent, but that is a different scenario.
Your trying to confuse the unintended usage by the customer with the intentional marketing by the manufacturer.
I'm confused. Given that it's Eglet handling it, how do neck injuries factor into this case?
ReplyDelete"Unintended usage" is a question of fact for the jury. If gun manufacturers sell a substantially disproportionate number of guns per capita in Florida and at the same time "ignore" the fact that purchasers of those guns take those guns to New York (which has stricter laws on purchasing guns) to resell, they can't hide behind "we didn't know what the purchasers were going to do".
ReplyDeleteThe theory with Teva is really no different. Teva sold a substantially disproportionate number of large vials to Endoscopy clinics in Las Vegas. This was despite an FDA advisory regarding concerns related to large vials. Teva helped set the stage for what came next. Whether you agree or disagree that Teva should be held liable, there definitely is a question of fact.
This is gonna be an interesting trial to watch. Jim Olson is pretty talented and a stand up guy. We all know Eglet is an amazing trial attorney. Yet, Eglet's theory seems pretty bogus to me.
ReplyDeleteI am a pro-PI guy, but it stretches reason to the breaking point to argue Phillip Morris is on the hook for marketing tasty cigaretts or that Smith & Wesson is on the hook for marketing fun toys.
ReplyDeleteEven if Teva had knowledge of both:
ReplyDelete1) Teva selling a substantially (higher) disproportionate number of large vials to Endoscopy clinics in Las Vegas; and
2) Syringe manufacturers selling a substantially lower number of syringes to endoscopy clinics in Las Vegas.
(And Teva managed to put those two things together), does Teva still have a duty to do something about the endoscopy clinics' potentially dangerous (based on the previous circumstantial evidence) behavior?
MEC is going home huge again on this one.
ReplyDeleteNo duty, no nexus, no $$$.
ReplyDelete@4:05. I don't care how many times you had to repeat your law school classes. You fail to appreciate the situation. Clark County jury, dumb ass judge, and best plaintiff's firm in town.
ReplyDeleteIf Eglet wins this one, then he is as good as he says he is. It's one thing to do a scripted case where you have the Awand team of "experts" in a cookie-cutter spine surgery case. It's a whole different thing to win a case like this. Now, granted, Eglet has the advantage of having Walsh in his back pocket, and that will give him an edge, at least on evidence rulings. But he's going to have to ask the jury to make a pretty big logical leap. Even a stupid Clark County jury will understand how difficult it is to get from A to B on this one. Best of luck, Bob.
ReplyDeleteStupid case + corrupt judge + corrupt attorney w/ great trial skills + stupid jury = VIVA LAS VEGAS!!!
ReplyDeleteI am quite sure other clinics who performed endoscopic examinations purchased the same product and did not re-use any unused product. The liability rests with the doctor who wanted to make money at the expense of his patients. It would be criminal to hold the pharmacutical company liable. It would be like holding Budwieser liable because they made their cans 36 oz. instead of 12 or 24 oz. therefore a person got drunk quicker so as not to waste the beer and then drove drunk causing an accident.
ReplyDelete@11:05,
ReplyDelete"It would be criminal to hold the pharmacutical company liable. "
Did you just arrive in our fair city?
What's with this:
ReplyDeletehttp://www.lvrj.com/news/lawyer-finds-himself-in-hot-seat-after-seeking-to-place-ag-there-90817419.html
I heard Jacob Hafter is a dick anyway.
I'd like to hear more comments on existing statutory and case law regarding learned intermediaries.
ReplyDelete9:07--Learned intermediaries seems irrelevant in this case because it appears from Blackstone (or whatever it is called now) that Judge Walsh disallowed it as an affirmative defense.
ReplyDeletePeople get blinded by their hatred for Eglet. Yes, he's an abrasive prick who pushes the envelope with judges, the NRCP, the dscovery rules, and the evidence rules. Yes, he cares little for his clients except to the extent he can use them as a vehicle to feed his pocketbook and his massive ego. But for goodness, sake, give the man his propers as a fearless trial attorney who doesn't back down and who can pretty much make jurors do what he tells them to do. I think many defense attorneys are offended by Eglet because he's better at getting away with the tactics he uses than most defense attorneys are at getting away with their own crap. If he wins this case, it won't be because he has any particular influence over Judge Walsh; it will be because he was better at persuading the jury than the guys representing the defendants were. In the end, a lawyer still has to go out and win the case. I'm pretty sure no one has ever caught Eglet bribing a jury. Ultimately, the jury decides the case.
ReplyDelete@9:40am = Rob Cottle
ReplyDelete@ 9:39
ReplyDeleteIt's called Odys-suck, and its an amazing new way for the district court clerk's office to do less while loosing more stuff and charging me and my clients more for the process.
Eglet will smite thee!
ReplyDeleteI can’t believe that even a dumb jury would find drug manufacturers have a duty to police the doctors. Who do you think will ultimately pay for any verdict against the drug companies? No matter what size vial was sold to the doctors, the doctors have the obligation to not hurt their patient. Everyone seems to forget that even 20ml vials could be multi dosed and misused, how are the drug companies supposed to stop the conduct of the doctors? Regardless of any verdict, this one is going to be reversed by the Nevada Supreme Court and hopefully some sensible case law will be the result of the judge’s stupid rulings.
ReplyDeleteyawn.. aren't there any new scandals brewing?
ReplyDelete@8:31
ReplyDeleteLet's just say the dude is Mandingo.
Okay, because Teva is concerned about highly trained professionals using its single use vials for multiple patients, it makes the vials smaller.
ReplyDeleteNevertheless, the (allegedly) ever devious, cheap and callous SOB Desai realizes that there are still small amounts of propofol left over in the smaller vials. Always looking to save a buck (as evidenced by his reusage of needles), Desai orders his docs and CRNAs to draw down all of the smaller propofol vials to empty, and pool the remainder in a vial for reusage on the next victim.
So much for the smaller vial theory. If Desai and his underlings wanted to disregard every safety protocol known to medicine in order to make a buck, then smaller vials would not stop them.
Did anyone else hear Pisanelli and Bice are leaving Brownstein to start their own firm? Pretty big blow to Brownstein if it's true.
ReplyDeleteheard about some movement over there at BHFS, but I didn't hear any names.
ReplyDelete@831
ReplyDeleteHafter is a dick. Of the lowest order. Think JOhn Holmes with ED !
Bice is a dick.
ReplyDeleteBice certainly is a dick. I think there is judicial notice of that fact.
ReplyDeleteWill Kemp is the true stud representing plaintiffs, not Eglet. Kemp is a genius, not to mention a great attorney.
ReplyDeleteWait a second...why is no one disturbed that Walsh struck Teva's affirmative "learned intermediary" defense. Is she under the impression that the Endo medical professionals were not aware of the potential danger of transmitting blood borne diseases by reusing the same vials? Let's just file this decision under "questionable".
ReplyDelete9:15 PM - Yep, Bice is a fat dick turd mofo.
ReplyDeleteSadly, he is far from the worse the Bar has to offer. He is actually above average.
Does Todd Bice suck because he's impossible to work with or because he's a zealous advocate? Maybe he just suffers from the usual attorney maladies like narcissism, arrogance, and egomaniac, but doesn't that describe most of the attorneys in town?
ReplyDeleteWho is worse Tod Bice or David Sampson?
ReplyDeleteThey are equally annoying. Bice is a better lawyer, but is more pompous. Bice also has lots of juice due to his long-time association with Schreck.
ReplyDeleteSampson is a prick too. Albeit smaller than John Holmes and Hafter, AND BICE.
ReplyDeleteThink Long Duck Dong.
BTW, Amber Candalaria lost her appeal today. Bixler Affirmed.
Which David Sampson - Ballard Spahr?
ReplyDeleteI did hear that Bice and Pisanelli left BHFS and are going to open their own shop.
ReplyDelete@5:57,
ReplyDeleteDoes that mean that either BP or BFHS are hiring? Seeing as they both just lost some dead weight?
Don't know the David Sampson from Ballard - But Sampson the plaintiff's lawyer is, IMHO, as incompetent as he is difficult.
ReplyDelete@717
ReplyDelete411. Here.
That's who I meant. Christiansen Law firm. Idiot and an embarassment to the practice.
Sampson actually had a Motion to Compel denied on the basis that is was "incomprehensible". Idiot is kind
ReplyDeleteEglet shoots and SCORES! Walsh is one of the lucky benefactors in the whole Awand/Eglet/Vannah debaucle and now will be giving her quid pro quo.
ReplyDelete