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Two down; 7,998 (or so) to go. That’s the count for Bayer AG in its defense of lawsuits alleging health problems caused by the company’s anti-cholesterol drug, Baycol. The first two trial verdicts were wins for the international drug company. The most recent ruling came in Hinds County, Mississippi, on April 3. A jury there decided that Bayer was not liable to Virgie Hardy, who sought $50,000 in damages for leg muscle pains she claimed were caused by the drug. The other decision, which came on March 18, was a surprise to some, particularly after the plaintiffs counsel had boasted of securing potentially damaging internal company documents to show the Corpus Christi jury. But that smoking gun strategy misfired when jurors returned a unanimous verdict in Bayer’s favor after a four-week trial. The jury expressly rejected claims, based on those documents, that Bayer knew the drug was unreasonably dangerous when it rolled Baycol out in 1995 and had not fully informed prescribing physicians about those dangers. “It feels very good,” says Bayer’s chief trial counsel, Philip Beck, a partner at Chicago’s Bartlit Beck Herman Palenchar & Scott. That feeling may not last for long. More than 700 new Baycol cases were filed during the monthlong trial. More than 8,400 are pending nationwide. The Texas suit was filed by Corpus Christi trial lawyer Mikal Watts on behalf of 82-year-old Hollis Haltom. He claimed that a trial prescription of a 0.08-milligram dose of Baycol triggered a debilitating case of rhabdomyolsis. The condition causes large muscles to die, flooding the body with toxins and often resulting in kidney damage and sometimes death. Poor Plaintiff Choice? After the decision, Watts and his firm limited their comments to a promise to appeal and to “fight until the last dog dies.” But other lawyers speculated that the combination of an elderly plaintiff with a lengthy medical history and a damages demand for nearly $560 million may have done in the Haltom case. “Jurors do not cut a lot of slack . . . for older sick patients who are looking to recover a lot of money,” says Dallas attorney C.L. “Mike” Schmidt. “I don’t know why.” Schmidt, who represents more than 1,000 Baycol plaintiffs, will try his first such case in June. “The negligence is exactly the same, no matter how old and sick you are,” he says. Wilmington lawyer Thomas Lamb says he represents fewer than 100 Baycol plaintiffs, taking cases only when a rhabdomyolsis diagnosis is confirmed or strongly indicated. Lamb says that he had followed the Haltom trial closely and that he believed that Bayer’s strategy was to shift the blame to Haltom’s doctor, Lee Guinn, who testified at the trial. He calls the tactic “unfair,” adding, “Bayer didn’t tell doctors that Baycol was much more dangerous” than other drugs in its class. When asked, Lamb also says that Haltom’s age and lengthy medical history made him a less than ideal plaintiff. Charles Zimmerman of Minneapolis, co�lead counsel for the 5,000-case Baycol multidistrict litigation, will face Bayer lead counsel Beck in two trials set for June. Beck won a second, smaller but not insignificant posttrial victory in mid-March, when the judge decided not to hold a hearing to consider sanctions against Bayer for sending a letter to more than 2,000 potential jurors living in the Corpus Christi area before trial. In the letter, a Bayer vice president for corporate communications recounted the company’s development of the drug and attempted to portray Bayer as acting “responsibly and appropriately” through all phases of Baycol’s life. The drug was voluntarily withdrawn from the market in 1999. Beck says the letter went out without his knowledge, and that attorneys for both sides had determined early on that none of the 12 jurors and two alternates selected for the trial had actually received it.
A version of this article originally appeared in The National Law Journal, a sibling publication of Corporate Counsel and a part of American Lawyer Media.

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