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DALLAS � Three years ago, when a team of plaintiffs’ lawyers led by John O’Quinn of Houston tried a fen-phen suit in a Beaumont courtroom and won a $1 billion verdict, including $900 million in punitive damages, products liability lawyers on both sides of the docket took notice of the record-setting award. Defendant pharmaceutical company Wyeth, based in Madison, N.J., appealed the $1.01 billion judgment that 172nd District Judge Donald Floyd of Beaumont had signed in one family’s fen-phen case in May 2004. The appeal was noteworthy because of the judgment’s astounding size and because the appeal would have tested Texas’ statutory cap limiting punitive damages. But that cap won’t be put to the test. Lawyers representing Wyeth and the plaintiffs in Jerry Coffey, et al. v. Wyeth, et al. have negotiated a settlement in the suit. In a joint motion filed with Beaumont’s Ninth Court of Appeals on April 5, the parties ask the appeals court to set aside the May 2004 judgment “without regard to the merits” and to remand it to the trial court, where they will ask Floyd to consider a settlement benefiting the minor plaintiffs in the suit and to enter a take-nothing judgment. In April 2004, the jury in Coffey awarded $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 the couple’s three daughters, alleged in the suit that Cappel-Coffey contracted PPH because of drugs she took to lose weight, including Pondimin. Wyeth manufactured the Pondimin that Cappel-Coffey took. Pondimin, recalled from the market in 1997, is one of the drugs prescribed in the diet-drug combination known as fen-phen. In May 2004, Floyd entered a judgment awarding the plaintiffs $113.9 million in actual damages, $900 million in punitives, $4.2 million in prejudgment interest and $188,737 in guardian ad litem fees. O’Quinn, of Houston’s O’Quinn Law Firm, did not return two telephone calls seeking comment. His former partners, Richard Laminack and Thomas Pirtle, who worked on the Coffey suit with O’Quinn, each did not return a telephone message left at their new firm, Laminack Pirtle & Martines in Houston. The joint motion filed with the appeals court does not contain details of the settlement. The guardian ad litem for the minor plaintiffs, Joseph Deshotel, an attorney in Beaumont who is a member of the Texas Legislature, also did not return a telephone message left at his legislative office in Austin. But an appellate lawyer for the plaintiffs, David Holman of the Holman Law Firm in Houston, says that in the nearly three years since the verdict in Coffey, no appeals court in Texas has addressed the statutory cap on damages. The cap limits punitive damages to twice compensatory damages plus up to $750,000.
Houston lawyer David Holman says a ruling on the statutory cap on punitive damages would have been ‘huge’ and precedent-setting.

He says a ruling on the statutory cap would have been “huge” and precedent-setting. At the time of the verdict, O’Quinn said the $900 million in punitive damages in the wrongful-death suit would pass appellate muster, because the jury found Wyeth knowingly or intentionally destroyed, altered or concealed public documents. O’Quinn alleged in 2004 that because that act is a violation of � 32.21 of the Texas Penal Code � which bans forgery � the cap that would limit punitive damages does not apply. But Wyeth maintained otherwise. William Sims Jr., a partner at Vinson & Elkins in Dallas who was the lead trial lawyer for the defense, said in 2004 that the evidence did not support the verdict. He also said that the cap would apply and that Floyd’s instruction to the jury on that issue was in error. Sims did not return a telephone call seeking comment. Claudia Wilson Frost, a partner in Mayer, Brown, Rowe & Maw in Houston who is working on the appeal for Wyeth, refers questions to Wyeth, whose spokesman Douglas Petkus declines comment. However, in its most recent 10K filing, Wyeth reports that prior to oral arguments in the Coffey appeal, which had been scheduled for April 2006, “the Company reached an agreement in principle with the law firm representing the Coffey/Cappel plaintiffs to settle the claims of all of that firm’s diet-drug clients, including the plaintiffs in the Coffey/Cappel case.” “As a result of that agreement, the parties filed a joint motion with the Ninth District Court of Appeals in Beaumont, Texas to postpone the scheduled argument in the case, pending finalization of the settlement. That was granted by the court,” Wyeth writes in the 10K, which was filed with the U.S. Securities and Exchange Commission in February. Holman confirms that the oral arguments were postponed because of the agreement between O’Quinn and Wyeth to settle all of O’Quinn’s firm’s fen-phen suits � the Coffey case and others. Brenda Sapino Jeffreys is a reporter with Texas Lawyer, a Recorder affiliate based in Dallas.

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