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John M. O’Quinn persuaded a jury in Beaumont, Texas, to return a record $1.01 billion verdict in a fen-phen suit on April 27, but the Houston plaintiffs’ lawyer now faces the harder task of convincing the trial judge and appeals courts that the jury finding breaks a statutory cap on punitive damages.

O’Quinn said the $900 million in punitive damages in the wrongful-death suit will pass appellate muster because the jury found Wyeth knowingly or intentionally destroyed, altered or concealed public documents. He alleges that because that act is a violation of Section 32.21 of the Texas Penal Code – forgery – the cap that would limit punitive damages to twice compensatory damages plus up to $750,000 does not apply.

Wyeth, the Madison, N.J.-based pharmaceutical company, maintains otherwise. William D. Sims Jr., a partner in Vinson & Elkins in Dallas who was the lead trial lawyer for the defense, said the cap will limit any punitive damages.

“We think the court erred in instructing the jury on that issue,” Sims said.

Wyeth, which manufactured the Pondimin taken by a Jefferson County woman for five months in 1997, will appeal any adverse judgment in Jerry Coffey, et al. v. Wyeth, et al. Pondimin, recalled from the market in 1997, is one of the drugs that was prescribed in the diet-drug combination known as fen-phen.

After deliberations that stretched over nearly a week, a jury in Beaumont returned a unanimous verdict that awards $113.9 million in actual damages and $900 million in punitives to the family of Cynthia Cappel-Coffey, who died at age 41 on New Year’s Day 2003 of primary pulmonary hypertension, a rare and deadly lung disease.

The plaintiffs – Cappel-Coffey’s husband and their daughters, aged 11, 7 and 4 – alleged in the suit, filed in 172nd District Judge Donald Floyd’s court in Jefferson County, that Cappel-Coffey contracted PPH because of drugs she took to lose weight, including Pondimin.

While O’Quinn may face an uphill battle to keep the $1.01 billion verdict, the heft of the record-setting award is likely to improve the settlement value of other fen-phen suits, particularly those alleging that drugs taken in the fen-phen combination caused PPH. Most of the fen-phen suits allege heart-value damage.

“I’ve got . . . a PPH case and clearly this verdict has made me think it was worth more than it was yesterday,” Houston plaintiffs’ lawyer Tommy Fibich said the day after the Beaumont verdict.

Fibich, a partner in Houston’s Fibich Hampton & Leebron, said the verdict improves the market value of any pharmaceutical case, not just those involving fen-phen.

“A rising tide lifts all boats. This is a rising tide,” said George Fleming, a plaintiffs’ lawyers in Houston.

“This is extremely significant. This is going to cause the company to come to grips [with fen-phen litigation],” said O’Quinn, who tried the suit with partners Richard Laminack and Thomas Pirtle.

O’Quinn said he intends to try more PPH suits against Wyeth. He expects other lawyers with trial dates in PPH litigation to call on him to try their PPH suits as well.

“All I’m going to do is try PPH cases until I bust them [Wyeth] and they start settling,” O’Quinn said.

The $1.01 billion verdict is the largest ever in a fen-phen case. O’Quinn said it’s also the largest-ever verdict in Jefferson County, an area with a reputation as a plaintiffs’-friendly venue, and the nation’s largest verdict for the death of a single individual.

Sims said the evidence does not support the verdict. He noted, “We were in a difficult venue . . . that is known for large verdicts and the plaintiffs’ lawyers asked for almost exactly what the jury gave them.”

Sims defended the suit with assistance from Peter Bleakley and Tim Atkeson, partners in Washington, D.C.-based Arnold & Porter, Wyeth’s national fen-phen counsel, and appellate lawyers Robbi Hull, a partner in V&E in Austin, and Leslie Benitez, a partner in Austin’s Clark Thomas & Winters.

The plaintiffs’ team also includes Gilbert T. Adams of the Law Offices of Gilbert T. Adams in Beaumont. Joe Deshotel of Beaumont, a state representative, is guardian ad litem for Cappel-Coffey’s children.

The fen-phen litigation boom began after the Food and Drug Administration asked drug companies to withdraw fenfluramine, the “fen” part of the drug combination, and the related drug dexfenfluramine, or Redux, from the market in September 1997. Almost immediately, Texas plaintiffs’ lawyers started filing individual products liability and negligence suits against manufacturers and distributors of the drugs, including Wyeth (then American Home Products Corp.) and related companies.

Wyeth agreed to settle its fen-phen litigation for $3.75 billion, but the multidistrict class settlement pending in federal court in Philadelphia applies only to plaintiffs alleging heart-value damage from fen-phen drugs, not PPH.

“I don’t think that verdict has any effect on the national settlement,” said Charles Parker, a partner in Houston’s Hill & Parker who is a class counsel in the fen-phen multidistrict litigation. “All the PPH cases are outside the settlement and most of them, I believe, have already come up for trial and have settled.”

UNDER THE RADAR

Sims said Wyeth attempted to settle Coffey before trial by offering “as much or more than in other cases against other fine plaintiffs’ lawyers.” But O’Quinn said Wyeth’s pretrial settlement offer was inadequate considering the facts in Coffey.

In the sixth amended petition in Coffey, the plaintiffs alleged strict products liability, negligence and gross negligence, negligent misrepresentation, misrepresentation, fraud, civil conspiracy, breach of continuing duty to warn, breach of express warranties, breach of implied warranty of fitness for a particular purpose, breach of implied warranty of merchantability and violations of the Texas Penal Code.

The jury found Wyeth was negligent, failed to give adequate warnings of the risks and dangers of Pondimin, and found that the drug was unreasonably dangerous. The jury also found Wyeth acted maliciously, knowingly or intentionally destroyed, removed, concealed, altered or substituted the availability of a public document (the finding that O’Quinn said breaks the cap).

Laminack said the public documents at issue are “adverse event” reports about Pondimin that Wyeth should have filed with the FDA. (Floyd instructed the jury that the “deliberate alteration” by Wyeth of records is spoliation or destruction of evidence relevant to the case.)

Sims said Wyeth will appeal Floyd’s decision to let the jury consider the question about the knowing and intentional destruction of documents. He noted that in a fen-phen suit tried in Jim Wells County in 2001, former 79th District Judge Terry Canales threw out a similar jury finding when entering a judgment. In that suit, Gloria Lopez v. American Home Products Corp., a jury awarded the plaintiff $11.55 million in actual damages and $45 million in punitives, but Canales entered a judgment for $9.18 million including interest, and the case settled under confidential terms.

Because Lopez settled, the question of whether the jury finding broke the cap on punitive damages did not receive appellate scrutiny.

But on April 27, the Coffey jury awarded $400 million in punitive damages to the plaintiffs to compensate them for the death of Cappel-Coffey. The jury awarded 52 percent of those punitives to Jerry Coffey and 16 percent each to Rachel, Sarah and Jennifer Coffey.

The jury also awarded $250 million in punitive damages to compensate Cappel-Coffey for damages before her death. Also, the jury awarded an additional $250 million in punitive damages to compensate Jerry Coffey for loss of household services and consortium before the death of his wife and to the three girls for the loss of parental consortium. The verdict divides that award equally between Jerry Coffey and his three daughters.

Those are heady amounts, making the Coffey suit of great interest to plaintiffs’ lawyers with fen-phen suits.

“Will the punitives hold up? That depends on Texas appellate courts, and I will tell you I don’t have huge confidence in them,” said Fleming, of Houston’s Fleming & Associates.

Scott Rothenberg, a solo practitioner who handles appeals for plaintiffs’ lawyers and defense attorneys, said the magnitude of the verdict could make it more difficult for O’Quinn to get it upheld by appeals courts.

“Any time a verdict gets too high in the eyes of the court system and public opinion, the courts will pay particular scrutiny to the process and be particularly careful to make sure that an appropriate judgment is rendered,” Rothenberg said. “If there is any way to reasonably construe the cap to apply, I think as a matter of public policy they will attempt to do so.”

He added, “As a plaintiffs’ lawyer you want to obtain the highest verdict possible that will still fly below the radar.”

This article originally appeared in Texas Lawyer , a publication of American Lawyer Media.

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