Recently, A Nevada Jury awarded $500 Million in punitive damages to a couple infected with Hepatitis from an Endoscopy center. It is well known the facility and its doctors, primarily Dr. Desai, reused Propofol vials (an anesthestic) on patients mixing the syringes and needles between patients cross contaminating. It is well known the Doctors did not have the money to compensate the victims who have genetically linked their disease to the outbreak at the facility. The jury awarded $5.1 Million in compensatory and then awarded the 1/2 billion dollar sum to punish the maker of the drug. The convincing argument was the 50ml vials should not have been sold to centers that had minimal use for such large doses of medication.
This lawsuit was based on the Strict Products Liability Cause of Action that is a very strong action, if the Plaintiff’s can prove the product failed in its warnings, was defectively designed, or was mis-manufactured in some fashion. The key here was the defectively designed containers that “encouraged” multi uses for business/profit reasons–allegedly. The vials do have qualified uses in drip systems and other longer sleep patient procedures. So, in essence, the company was punished by the jury (in this case Teva and Baxter Pharmaceuticals) for this “encouragement” in that they knew doctors may be reusing the vials and they helped in some fashion by making such a “large” dosage. Whether or not personal injury lawyers are correct in their allegations, the jury believed the arguments and found not only that these companies were liable, but that they should be punished for their bad behavior. Given that the combined annual revenue of these companies exceeds $13 billion, even the $500,000,000 is a slap on the wrist–but it would get any accountant’s attention. So, one must contemplate whether the underlying case was justified. To understand how a jury gets to this, one must understand that Negligence is not a bar to strict products liability.
The law is founded on the assumption that manufacturers need to make safe products–very safe products, or face severe ramifications for bad design, bad warnings, or bad product. If a product is misused this is a defense to products liability. And, arguably the doctors misused the “single” dose vials. The jury did not believe this argument because they were not allowed to hear it! The jury was barred from hearing testimony that doctors misused the vials given that this “negligence” was not a factor in the products liability action. While this author did not sit through the trial and hear all the relevant testimony, the point is clear that the case was tried as a products case, and the jury found that the manufacturer was liable for creating an unreasonably dangerous product. The absurd response comes from those who compare this scenario to that of a car driver who car drives 100 mph but yet the roads only allow for 55mph. Should we sue the car manufacturer for the drivers error when he crashes doing 100mph? Another comparison is one to cough syrup. It comes in 10 oz bottles. The consumer is “warned” to only take 2 tablespoons (one ounce). If a consumer drinks the whole bottle, should we then sue Robitussan or Vick’s Cough syrup because the consumer did not follow the instructions? Well, the crazier thing here, is not only was warning not obeyed, it was a doctor who did not obey it…
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