As a dangerous drug attorney, I’ve written here before about a Nevada scandal in which patients were treated with infected anesthetics. Patients being treated for unrelated conditions were unwittingly exposed to serious diseases like hepatitis and HIV, and several have sued the medical centers and drug manufacturers behind the problem. One such case is Sicor et al. v. Sacks et al., in which the Nevada Supreme Court ultimately ruled that Sicor and other defendants could not move for a change of venue until a jury was selected and could be interviewed about the effects of pretrial publicity. The Clark County trial court dismissed the motion without prejudice as untimely and Sicor appealed, but the Nevada Supreme Court dismissed the appeal as not ripe because deferring the motion until jury selection did not create a final, appealable order.
Sicor and other defendants are manufacturers of propofol, which was used by non-parties to the suit in Clark County (which includes Las Vegas). About 60,000 patients received letters in 2008 warning them that they may have been exposed to infections including hepatitis B, hepatitis C and HIV. This set off a local firestorm that included criminal investigations, business and personal bankruptcies and about 200 Clark County lawsuits. This was heavily covered in the Clark County media, so Sicor moved before trial for a change of venue to Washoe County (which includes Reno, a much smaller city several hours away), arguing that it would have a better chance of a fair trial. The trial court considered arguments and jury questionnaires, and ultimately dismissed the motion without prejudice, saying the issue could be reopened if a fair jury could not be seated after voir dire. This appeal followed.
In this appeal, the Nevada Supreme Court said, the issue is whether the order was appealable at all — whether it was final enough to be appealed. The court ultimately said no. It’s true that denial of a motion for a change of venue is usually appealable — but the court noted that such orders must be final. By contrast, an order that reserves the final judgment until a later date would not normally be construed as final and appealable — but because this one had to do with change of venue, it was open to that interpretation. The Nevada high court had never considered the issue before, so it reviewed decisions from other jurisdictions, including the U.S. Supreme Court’s 2010 Skilling v. U.S. decision. Considering all these decisions and Nevada law, the Nevada Supreme Court declined to construe the trial court’s deferral of the venue change motion as a denial. Thus, it said, the order was not appealable and the appeal must be dismissed as premature.
Interestingly, this decision was issued contemporaneously with a similar appeal involving Sicor and different plaintiffs, in which Sicor waited until the jury was empaneled, but the motion for change of venue was still denied. In that case, the high court agreed with the trial court that a fair trial could be held in Clark County. As a pharmaceutical liability lawyer, I suspect this is not the last appeal Sicor will file with the Nevada high court, given that literally 60,000 Nevadans were affected by the tainted propofol. When this much money is at stake for the defendant, it often chooses to fight every issue to the appellate level, believing this is less expensive than settling. As a defective drug attorney, I fight this tendency in my own cases, attempting to minimize delays and costs for my clients — but never at the expense of justice.
If you believe your family suffered a serious illness or injury because of a tainted or unsafe medication, don’t wait to call Carey, Danis & Lowe to discuss how we can help. For a free consultation, send us a message through our website or call 1-877-678-3400.
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