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staff reporter errol b. taylor: Cross-examination should be concise, pointed and directed. “You should get in and get out,” Taylor said. But, above all, cross-examination should create doubt. Attorney: Errol B. Taylorfirm Fitzpatrick, Cella, Harper & Scinto, New York case: In re Omeprazole Patent Litiga- tion MDL No. 1291 (S.D.N.Y.) winning-for most patent litigators-usually means a favorable settlement, said Errol B. Taylor, partner in the litigation practice at Fitzpatrick, Cella, Harper & Scinto in New York. Trials are rare, he said. “There are a lot of patent litigators who don’t have much trial experience.” However scarce trials may be, Taylor relishes them. And he got a bellyful in a bench-trial win last year involving Prilosec, a popular stomach-acid-reducing medicine. Taylor represented AstraZeneca PLC, which owns patents for omeprazole, the active ingredient in Prilosec, one of the world’s most-prescribed medicines. Worldwide sales for Prilosec and AstraZeneca’s other omeprazole brands totaled $5.7 billion in 2001, according to the company. After several generic drug manufacturers sought permission from the U.S. Food and Drug Administration to market their versions of the drug, AstraZeneca sued, alleging infringement. The generic companies argued that AstraZeneca’s patents were invalid. Billions of dollars in drug sales were at stake in the case-a multidistrict litigation consolidated in New York federal court. AstraZeneca won the bulk of the verdict. In a 277-page ruling in October, the judge found that the patents at issue were valid until 2007. The judge also found that all but one defendant had infringed, though the generic drugs had not been marketed. The case is on appeal with both plaintiff and defendants raising issues. A second wave of Prilosec patent litigation involving a different set of generic-drug makers is in discovery. Taylor, who has handled about half-a-dozen trials in a 16-year legal career, headed the 15-lawyer team that tackled the mammoth case. “You do not try a case like this by yourself,” Taylor said, noting that partner Fred Zullow was “instrumental” in readying it for trial. The trial consolidated five separate actions pending since 1998. Discovery took three years. Trial lasted seven months. Neither side thought the case would last as long as it did, said Taylor. “The defendants decided that it was in their interest to cross-examine each of our witnesses ad infinitum,” he said. For example, a key plaintiff’s expert testified for a little more than a half-day about the tests he conducted on the four defendants’ products to illustrate the alleged infringements, Taylor said. The defense cross-examined him for three days, Taylor said. “I don’t think it helped them.” Cross-examination “should be concise, should be pointed, should be directed,” he said. “You should get in and get out.” The line between effective cross and overdoing it is not blurry, he said. “I think definitely they were way over.” Cross should “create doubt,” he said. “You don’t have to do that by addressing every single thing he’s done. You can do that by attacking his credibility. You can do that by pointing out the one or two ways how his testing may not have been entirely sound.” The judge or jury will view your client’s case by your own conduct, he said. Overdoing it could hurt your case. Don’t “fight tooth and nail for everything,” he said. “You need not fight every war and every battle as if it’s World War III.” Winning means managing “how you are perceived.” In long trials, keeping a high energy level is challenging. Taylor said he lived in a hotel during the trial, and it was hard to be away from family. “I felt like I was away in jail. I’d get cards and care packages from my kids,” he said. “You work hard. You are up till wee hours getting ready for the next day. You sweat every detail. You go over things time and time again.” What a rush! What makes it all worthwhile, though, is when you “nail” an expert on cross-examination, he said. “It’s a great feeling. It’s a rush. It’s an adrenaline rush.” Taylor got one of those highs in the Prilosec trial when crossing a defense expert witness who claimed a defendant’s manufacturing process was noninfringing. Repeatedly using the phrase “seeing is believing,” said Taylor, the expert emphasized the importance of personally viewing the procedures before making his conclusion. Yet Taylor said he impeached the expert with the expert’s own records to show he wasn’t at the plant when he claimed to be. The expert said he was at the plant from late afternoon on through the manufacturing procedures, which lasted until about 4 a.m. From expense records the expert submitted to the defense law firm-produced in discovery-there was an airline ticket with flight times noted, Taylor said. The records showed he left the plant about 5 p.m., though the manufacturing process was only half completed, Taylor said. “I knew I had this, but he didn’t know I had this,” he said. “So I take him down this path, how important it was that if you’re not there you don’t know what’s going on,” he said. After the expert had testified for about 15 minutes about “seeing is believing,” Taylor confronted him. “It was a dead silence,” he said. The expert admitted he wasn’t there. “His credibility was gone,” he said. “For a patent lawyer, it’s like a Perry Mason moment.” Coming up with great impeaching material means doing hard work and checking everything, said Taylor. “Sometimes, it’s just luck. It’s paying attention to every little detail.” One of those little details in patent litigation that helps sell a case to a jury or judge is testimony from the inventor about the invention, said Taylor. “People want to hear the story,” he said. “In cold patent concepts, it doesn’t matter how the invention was made in assessing its validity. Most people want to know that there was a problem and it was hard to solve. And they solved it in a way that was ingenious.” Like the inventors he puts on the stand, Taylor is a scientist. Before law school, he worked in drug development for 10 years as a biologist for Squibb Corp. His work in science didn’t directly prepare him for a career in patent litigation except that it gave him an insight into the pharmaceutical industry that others don’t have, he said. “I got out of science because I didn’t think I was a great scientist,” he said. “I thought I wanted to be a litigator. I thought I wanted to be a trial lawyer.” Big-trial victories don’t necessarily mean big-money judgments. No money changed hands in the Prilosec case, Taylor said, and that may seem strange since billions were at stake. Such was the case in another of Taylor’s favorite trials, one over the anxiety medicine Desyrel. Taylor won declaratory judgment and an injunction against a generic drug maker, Barr Laboratories Inc., which wanted to market an equivalent. Taylor’s clients, Mead Johnson & Co. and Bristol-Myers Squibb Co., held a patent on the way the tablet was scored so it could be split, said Taylor. The judge said the generic drug maker infringed. One of the more satisfying aspects of the case was the way the president of the generic company was quoted as saying that the case exemplified how pharmaceutical companies were inappropriately maneuvering to keep generic drugs off the market. Taylor recalled the quotes: “They are going to lose. They know they are going to lose. I know they are going to lose. But they are going to continue to fight because as long as they are fighting, the FDA can’t approve our application.” Taylor savored that win. “That was a really good feeling for me.”

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