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Long-simmering difficulties between a federal judge and a plaintiff’s lawyer have come to a head, with the judge calling William Levin and his team “ethically challenged” and overturning the $143 million trademark infringement verdict Levin’s client won against pharmaceutical giant Pfizer Inc. U.S. District Judge Lourdes Baird announced at a hearing in Los Angeles on Monday she is declaring a mistrial based on attorney misconduct. Baird stated that during a trial in her U.S. District Court for the Central District of California court last fall, attorneys from Laguna Beach, Calif.’s Levin & Hawes used manufactured evidence, ignored her evidentiary rulings and encouraged witnesses to lie under oath. Levin represents a British company, Trovan Ltd., and its Santa Barbara, Calif. distributor, who sued Pfizer for naming a new and controversial antibiotic “Trovan” despite warnings from Trovan Ltd. that it had registered the name with the U.S. Patent and Trademark Office in 1991. In October, jurors awarded Trovan the record verdict — $8 million in compensatory damages and $135 million in punitives. In a January motion by the defense for a mistrial, Pierce O’Donnell argued that Levin and his colleagues used a “win-at-any-cost” trial strategy designed “to mislead and inflame the jury.” The motion noted that the judge herself either sustained, or raised on her own nearly 900 objections to the plaintiffs’ conduct during the trial. In an interview, O’Donnell, whose L.A.-based firm O’Donnell & Shaeffer was hired after the trial, said he had never seen such misconduct in a courtroom. Trovan Ltd. manufacturers electronic homing devices typically implanted in the ears of cats and dogs. Pfizer’s defense centered on the argument that since the devices are mechanical and used with animals, there was no chance of consumers confusing the product with an antibiotic taken by humans. The purportedly manufactured evidence, cited in defense motions in January, concerned letters apparently from purchasers of the devices. The purchasers wanted to know if their pets were at risk following news stories about deaths attributed to the antibiotic. One letter writer, accompanied by her cats, testified at trial. But following a hearing outside the presence of the jury, the judge found other letters questionable and instructed jurors to ignore them. Levin, who denies wrongdoing, said he would prefer not to name the witness at the core of the judge’s ruling. He said that the witness’s testimony concerned a marketing expert’s estimates of how much it would cost Trovan Ltd. to run a “corrective campaign” countering bad publicity about the antibiotic. Levin declined to discuss the judge, beyond noting that the last thing any lawyer wants to do is to antagonize a federal judge. In this case, he said he asked co-counsel to argue most post-trial verdicts in his stead. Following the Oct. 12 verdict, the plaintiffs filed an unsuccessful motion asking the judge to recuse herself from further proceedings. The motion also asked that the judge “withdraw accusations” regarding the ethics of the plaintiffs and their counsel. The judge’s Monday mistrial ruling technically was tentative, and she placed her 74-page written decision under seal. But participating attorneys agreed she had made it clear that she will not change her mind between now and when she releases a final ruling in several days. Levin said his client is “considering all the options” to challenge the judge’s ruling.

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