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Bayer Corp., a defendant in a Baycol products liability trial under way in Corpus Christi, Texas, faces possible sanctions after an in-house lawyer authorized the mailing of a letter to more than 2,000 addresses in Corpus Christi during jury selection. Nueces County District Attorney Carlos Valdez also is investigating. As it turns out, the letter suggesting Bayer tried to settle the suit was sent to a 2,121-name mailing list from the Corpus Christi Chamber of Commerce, including two of the 80 individuals on the jury panel in Hollis Haltom, et al. v. Bayer Corp., et al.Neither prospective juror was among the 14 selected for the jury in the suit, which went to trial on Feb. 18 before Nueces County Court-at-Law Judge James Klager. Mikal Watts, the lead lawyer for the plaintiffs, said at a hearing on Feb. 21 that the letter from a public relations executive at Bayer might be an attempt at jury tampering. He also alleges in an interview that Bayer could have been seeking a mistrial. Watts says he found out about the letter on Feb. 20, when a number of lawyers and other members of the community called him about it. Bayer’s lead defense lawyer, Philip Beck, said at the hearing that he did not learn about the letter until Feb. 20. Beck told Klager he believes the Bayer public relations staff made an honest mistake. “They were focusing on the public relations rather than on the fact that we were going to be picking a jury and trying a case on behalf of Bayer,” he said at a Feb. 21 hearing on the plaintiffs’ motion for a temporary restraining order. The mailing was authorized by Gary McConnell, a senior counsel at Bayer Corp. in Pittsburgh, and signed by Meredith B. Fischer, a vice president at Bayer HealthCare North America, Communications and Public Policy. McConnell said in an affidavit that he approved mailing the letter to business leaders in the Corpus Christi community in response to what he believed would be “publicity” during the Haltom trial. He said he did not expect the mailing list to be so large. “It never occurred to me, but should have, that they could be members of the jury panel,” McConnell said in the affidavit. In response to the plaintiffs’ motion for a restraining order against Bayer, Klager signed an order on Feb. 21 prohibiting the parties in the suit from sending letters to jurors or third parties who could influence the jurors, from contacting the jurors, or from directly or indirectly attempting to contact the jurors through third parties. According to a transcript of the hearing on Feb. 21, Klager also said he will hold a sanctions hearing after the Baycol trial concludes, and warned the out-of-state lawyers on the trial teams to make sure to read the Texas Rules of Professional Conduct. “I just want you to understand in plain language I will not tolerate any of this other stuff,” Klager said at the hearing, according to a transcript. Klager, who asked Valdez to come to the hearing, told Beck to make sure McConnell and Fischer get lawyers. Valdez did not return three phone messages left at his office Thursday. In the two-page letter, Fischer said that Bayer finds itself the defendant in about 7,800 Baycol products liability suits, despite its efforts to act “responsibly and appropriately” in the management of the anti-cholesterol drug. She said the company has settled 450 suits and is hopeful it can settle more. She wrote in the letter that Bayer “deeply regrets” that it could not settle the Haltomsuit before trial. “Despite our best efforts to reach a fair settlement in this case, including an offer to enter into mediation with the plaintiff and his attorney, it appears that the trial will go forward,” Fischer wrote. [ See the letter, below.] Watts, of the Watts Law Firm in Corpus Christi, says no settlement negotiations for Haltomare ongoing. Watts and Beck, a partner in Bartlit Beck Herman Palenchar & Scott of Chicago, told Klager on Feb. 21 that they have agreed that because of the letter, Watts and Beck will be the only individuals from either side who can make public comment about the trial until it concludes. The Haltomsuit is the first Baycol suit to go to trial in the United States, and the verdict — if the Haltoms win — will help set a market rate for future settlements of Baycol suits. The 82-year-old plaintiff alleges in the petition that he contracted rhabdomyolysis, a breakdown in muscle tissue, after taking Baycol, a drug intended to lower cholesterol levels, for two weeks in May 2001. Watts says Haltom seeks more than $100 million in actual and punitive damages from Bayer. Hollis Haltom and his wife, Eleanor, are asserting various causes of action against Bayer, including strict products liability, negligence, breach of warranty, breach of implied warranty and misrepresentation. Bayer voluntarily recalled the anti-cholesterol drug in August 2001 after it was linked to dozens of deaths, according to the U.S. Food and Drug Administration Web site. The company alleged in the opening arguments of the trial that it is not liable for the injuries to Haltom. ‘ALMOST MYSTIC POWERS’ Watts says he first heard about the letter on Feb. 20, the first day of testimony, when lawyers and others from Corpus Christi started calling his office about the letter they had received in the mail, some on Feb. 19 and some on Feb. 20. “I got over 65 phone calls after court from lawyers, judges, businessmen in Corpus. All of them were saying the same word[s]: jury tampering,” Watts alleges in an interview. “I was shocked.” Voir dire in the case began on Feb. 18, and stretched into Feb. 19. The panel includes 12 jurors and two alternates. In his motion for sanctions, Watts alleges Bayer’s conduct in connection with the letter violates disciplinary rules, but he doesn’t specifically identify the rules. He told Klager at the hearing it may violate the rule that prevents lawyers from trying to seek a mistrial or delay in the trial, the rule prohibiting jury tampering and the rule prohibiting discussion of inadmissible information. Beck did not return a call seeking comment that was left at his office before press time, but he said at the hearing that Bayer’s public relations people were concerned about adverse publicity about the case and were under the misunderstanding that Watts and other plaintiffs’ lawyers have “almost mystic powers” within the community. “They apparently felt that they needed to get … Bayer’s story out to at least leaders of the business community. I was chagrined when I learned that because I thought, ‘Gee whiz. I’d kind of like to have some of those people on the jury and they automatically, of course, would have been excluded by receiving this letter,’” Beck said, according to the transcript. Beck told Klager that McConnell apparently approved the letter without consulting him because he was “trying to shield me from having to deal with all this sort of thing while I was trying to get ready for trial.” Neither Fischer nor McConnell returned phone calls seeking comment. Watts said at the hearing that on Feb. 20 he received calls about the letter from two judges and five lawyers in Corpus Christi. Robert Pate, a former state district judge in Corpus Christi, says he was surprised and offended to receive the letter, and believes it’s improper. He says his first instinct was to call Fischer to ask why he would have received such a letter, but after he got her voicemail, he called Watts. “It’s unclear to me what the purpose of the letter is other than to influence public opinion at one level or another,” Pate says. “The best spin you can put on it was it was an inappropriate way for this outfit to try to get their message across in this community. It’s unfortunate, too.” He also finds it sad because it shows little faith in the jury system. “It distresses me when there’s anything like this that goes out now and casts a doubt on the manner and means of how we conduct our business,” he says. “There’s an implication in this letter that they needed to do this, that they needed to, to have a fair trial.”
THE LETTER February 17, 2003 Over the next several weeks, there will undoubtedly be interest in the Corpus Christi community about a local man who is suing Bayer Corp. regarding a drug called Baycol, which was voluntarily withdrawn from the market in August 2001. Because your primary, or perhaps only, association with Bayer may be one of our many well-known consumer products such as Bayer Aspirin, as a courtesy I’d like to introduce you to Bayer Corp. and give you a brief background on Baycol and surrounding issues. Bayer’s pharmaceutical division has its U.S. headquarters as well as primary research center in West Haven, Conn. The company researches, develops and markets innovative, highly effective drugs that prevent, relieve or cure life-threatening diseases and conditions, such as coronary artery disease, diabetes, bacterial and viral infections and urological disorders. The best-known of our pharmaceutical brands is undoubtedly Cipro, an important compound in our recent war on terrorism. The company is also working on many promising drugs that in the future might cure such dreaded diseases as cancer. Bayer Corp. and its subsidiaries has several large manufacturing and production sites in the state [of Texas]; indeed, nearly 2,000 Bayer employees live and work in the state of Texas. And last year we contributed almost $185 million to the economy of the state through our payroll, taxes and support of local groups. Now, let me provide you with some background on Baycol. Baycol was a member of a class of drugs known as statins, which are widely regarded as one of today’s “miracle drugs.” They have proven to be highly effective in lowering cholesterol and are a mainstay in the fight against heart disease. As with all medications, however, these powerful drugs carry potential serious side effects for a small segment of the population. Among these rare side effects is the potential for rhabdomyolysis, a condition that is characterized by muscle weakness. Baycol was widely prescribed by doctors to lower the cholesterol levels of more than six million patients worldwide, 700,000 patients in the United States alone. The drug worked safely and effectively for the vast, vast majority of those who took it. But again, as is the case with all medications, some people experienced side effects. Baycol was a well-researched and thoroughly tested compound. It underwent strict and comprehensive testing processes to meet the various approval standards and requirements of approximately 90 regulatory bodies around the world and was clinically tested in more than 10,000 individuals — 3,000 of these prior to the launch. Baycol was found to be effective, safe and significantly less expensive than other drugs in the statin category. It quickly became the treatment of choice for many physicians. As always, Bayer monitored ongoing Baycol data continuously after launch to ensure that is was being used safely and correctly. The company used due diligence in applying well-recognized industry-standard and approved methods to monitor patients for possible side effects. When we became aware of an increased rate of reports of rhabdomyolysis in patients taking Baycol — particularly when the drug was used in combination with gemfibrozil, which is used to lower the level of triglycerides in the blood — Bayer took immediate and appropriate action. We conducted comprehensive scientific studies to pinpoint the problem. Simultaneously, we implemented an aggressive campaign to educate doctors, pharmacists and other healthcare professionals about potential side effects. But when it became clear to us, that despite our best efforts, Baycol was still being prescribed in ways that increased our concerns for patient safety, Bayer Pharmaceuticals voluntarily withdrew the drug from the market. Although we firmly believe that we acted responsibly and appropriately regarding the management of this drug through every phase of its history, today, Bayer is in the midst of litigation regarding Baycol. Despite our conscientious efforts to ensure its safe use, approximately 7,800 lawsuits concerning Baycol have been filed against Bayer. We are in the process of analyzing the specific circumstances of each case and the nature of each individual claim. Our policy is to try to agree on fair compensation for anyone who experienced a harmful side effect, regardless of whether Bayer might have valid legal defenses to the claim. Without conceding liability, we have reached settlements in approximately 450 such cases to date. We have every hope and expectation that this pattern of mutual agreement will continue. At the same time, in cases where an examination of the facts indicates that Baycol played no part in the patient’s medical situation, or where a settlement is not achieved, we are and will continue to defend ourselves vigorously. The first Baycol trial in the United States will commence the week of Feb. 17 in Nueces County District Court. Despite our best efforts to reach a fair settlement agreement in this case, including an offer to enter into mediation with the plaintiff and his attorney, it appears the trial will go forward. We deeply regret that our efforts have not been successful in this instance. As you hear and see reports of the trial, I hope that you will keep an open mind to the efforts that Bayer made to give fair redress to this gentleman and, on a much broader scale, the tremendous contributions that our company has and continues to make to the health and welfare of millions of people worldwide. Sincerely, Meredith Fischer Vice President Bayer HealthCare North America Communications and Public Policy West Haven, Conn.

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