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Attorney: Dennis C. Sweet III, 44 Firm: Jackson, Miss.’ Langston, Sweet & Freese Case: Washington v. American Home Products, No. 99-0035 (Cir. Ct., Jefferson Co., Miss.) Dennis c. Sweet III does not believe in overtrying his cases. In a recent $150 million win against the makers of the fenfluramine portion of the weight-loss combination drug fen-phen, for instance, he was determined that his presentation of the plaintiffs’ case would use only a small portion of the evidence collected. The plaintiffs’ team had amassed numerous relevant documents and adverse statements from depositions by defense witnesses. “There were so many smoking guns. There were 600 to 700 documents, but we narrowed it to 15 to 20 to use in the trial.” Piling on is “punishment for the jury,” he says, “and can backfire. You don’t want to get the jury mad at you.” Sweet has used this style to great effect in trying both criminal and civil cases. He began his career doing criminal and civil rights litigation, first in the public defender’s office in Washington, D.C., then later as the first black attorney for the Southern Poverty Law Center. Since going into private practice in 1986, he has had several dozen verdicts of $1 million or more, including a $144.88 million verdict in 1998 against Ford Motor Co. and a $29 million verdict in a premises liability/wrongful-death action. In the Mississippi fen-phen case, several hundred plaintiffs were suing American Home Products Corp. and its pharmaceutical division, Wyeth-Ayerst Laboratories. Wyeth-Ayerst marketed fenfluramine under its Pondimin brand and a related drug, dexfenfluramine, as Redux, says Sweet. These drugs were taken off the market by American Home in 1997, after they were linked to heart valve damage in some users. The plaintiffs charged that fenfluramine was dangerous and that the defendants had withheld information and had manipulated the Food and Drug Administration into allowing widespread prescription of the drug combination. Five representative cases in the class were set for trial. All the Mississippi plaintiffs had opted out of the $4.8 billion national settlement offered by American Home, Sweet notes. “We didn’t want them in the settlement. We didn’t think it was a good deal.” HELPFUL ALLIES Sweet began his primary involvement after nearly all the documents were collected by members of his staff and by the firm of co-lead trial counsel Michael Gallagher of Houston’s Gallagher, Young, Lewis, Hampton, Downey & Kim. Some of the documents had been admitted in previous litigation, primarily in a fen-phen trial that drew a $23 million verdict in August 1999. Kip Petroff of Dallas’ Petroff & Kisselburgh, the attorney who won that verdict, “was extremely helpful,” Sweet recalls. “Anything he found that was hot, he sent us.” The first time he reads a document, he says, the goal is, “let’s find everything we can, anything damning.” In this case, Sweet says, “the documents were very, very strong.” One internal memo, he says, referred to “sending checks to fat women with some silly lung disease.” Another called Redux “a dirty drug.” The second time through, he says, “you’re thinking of the themes and how to use the documents.” The primary theme was quickly apparent: “This was all about the money. They put out a product that didn’t work, they knew it didn’t work, they knew it hurt people, but they just wanted to make money.” To handle all these documents for the trial, Sweet says, “we had a firm out of Texas put them all on a CD. Each document had a number, and during the trial you could call the number and put the document up on a screen.” This computerized document management is essential in a complex case to avoid “fumbling around” for evidence, he believes. As is his custom, Sweet handled voir dire. He feels this was particularly critical in the Mississippi trial. “It was important for me to be the first one in front of the jury. I’m from here. People know me.” Before voir dire, his staff investigated prospective jurors. “We get the list ahead of time and investigate the parents, the kids, whoever knows them.” His staff prepares a biography of each person. “[Y]ou don’t talk to anyone who might talk to the juror,” he says. Instead, his staff members contact community leaders or others who know many local people. He does not have a preconceived profile of the most or least desirable jurors. Instead, he says, “I’m looking for people who I think would identify with my client. People who are open-minded, who don’t have an agenda for tort reform, who will try and follow the law.” SELLING BIG NUMBERS During voir dire, he adds, he begins getting the jury used to large numbers. “Voir dire has two purposes — to get information about the jurors and to educate the jurors about the case and the money. I’m mentioning the numbers, that I’ll be asking for $100 million. One hundred million dollars sounds huge, but once you start getting people to say it, pretty soon they’re thinking $100 million. You don’t want to wait until the end. You have to warm them up.” He began the plaintiffs’ case by depicting American Home and Wyeth-Ayerst as rogue corporations, more interested in a buck than in their customers’ health. He used videotaped deposition testimony of the companies’ employees. His treatment of the first witness, a lobbyist for AHP, was typical. His intention, he says, was to establish that AHP was aiming to “keep below the radar screen” of the FDA, to keep fen-phen from becoming a “scheduled” medication, which would have more warnings on its prescriptions. Calling the lobbyist live would have given her a chance to alter or explain away the negative statements. “The defense would try to clean her up. Once they’re caught giving damning statements, just play them. We did these videos for two or three days,” he adds. He concedes that relying solely on video testimony for hours at a time “could be boring. But we made the cuts short. The longest video was a couple of hours. We cut out a lot, and we tried not to be cumulative at all.” His own clients, however, testified live, to counter the defense claims that they had not been harmed by the drug. Each plaintiff testified to the restrictions on their lives since taking fen-phen. Four ended up with pulmonary hypertension; the fifth, Vinester Williams, sustained heart damage, he reports. The high point of the trial was Sweet’s cross-examination of two of the defense witnesses: the president of Wyeth-Ayerst and the company’s medical safety director, Dr. Marc Deitch. His cross of Deitch was particularly compelling. “I was very aggressive with him. I knew he had to lie. The documents and notes were devastating.” He had no qualms about attacking Deitch, he adds. “He was a male, white executive. No one was going to have any sympathy for him.” Sweet confronted Deitch with a series of documents containing statements from Wyeth-Ayerst employees. “Every time I asked him about a document, he said, ‘This was a low-level employee and didn’t mean anything.’ “ Sweet pulled out the letter in which a Wyeth-Ayerst employee called Redux “a dirty drug.” “Deitch said he was a low-level employee. I asked him if the employee was still there.” Deitch confirmed that this employee was still at Wyeth-Ayerst. Many of these documents, he notes, were “introduced in my case-in-chief, but I held back some to use to impeach their witnesses. You put your strongest evidence in, but you hold some items until someone says something that makes it relevant. Then you use it.” In the closing he hammered away at the themes of: “they sold the drug, they knew it would hurt people, they knew it wasn’t effective,” he says. “This company chose money over life.” Sweet asked for $130 million in compensatories, but on Dec. 21, 1999, the Fayette, Miss., jury gave him $150 million. The jury was scheduled to consider punitives, but that night the defense settled. The settlement, which covered all the Mississippi plaintiffs, is confidential, but published reports estimate it at about $400 million. Tips: � Don’t pile on the evidence. � Investigate prospective jurors carefully. � Hold back some documents to impeach on cross.

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