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Although the first Baycol trial is over, with a win for its maker, thousands of claims remain, and the plaintiff in case No. 1 might not have been ideal. The victory by the international prescription drug company Bayer in the defense of its cholesterol fighter Baycol came as a surprise to some, particularly after the plaintiffs’ counsel had boasted of securing potentially damaging internal company documents to show the Corpus Christi, Texas, jury. But that smoking-gun strategy misfired on March 18 when jurors returned a unanimous verdict in Bayer’s favor after a four-week trial. Haltom v. Bayer Corp., No. 02-60165-00-0-4 (Nueces Co., Texas, Dist. Ct.). The jury expressly rejected claims, based on those documents, that Bayer knew the drug was unreasonably dangerous when it rolled Baycol out in 1995 and had not fully informed prescribing physicians about those dangers. “It feels very good,” said Bayer’s chief trial counsel, Philip S. Beck, a partner at Chicago’s Bartlit Beck Herman Palenchar & Scott. That feeling may not last for long. More than 700 new Baycol cases were filed during the monthlong trial. More than 8,400 are pending nationwide. The Texas suit was filed by Corpus Christi trial lawyer Mikal C. Watts on behalf of 82-year-old Hollis Haltom. He claimed that a trial prescription of a 0.08-milligram dose of Baycol triggered a debilitating case of rhabdomyolsis, a condition in which large muscles die, flooding the body with toxins that usually result in kidney damage and sometimes death. POOR PLAINTIFF CHOICE? Watts and his firm restricted post-trial commentary to a promise to appeal and to “fight until the last dog dies.” Other lawyers speculated that the combination of an elderly plaintiff with a lengthy medical history and a damages demand for nearly $560 million may have done in the Haltom case. “Jurors do not cut a lot of slack … for older sick patients who are looking to recover a lot of money,” said Dallas attorney C.L. Mike Schmidt. “I don’t know why.” Schmidt represents more than 1,000 Baycol plaintiffs. He will to try his first such case in June. “The negligence is exactly the same, no matter how old and sick you are,” he said. Wilmington, N.C., lawyer Thomas J. Lamb said that he represents fewer than 100 Baycol plaintiffs, taking cases only when a rhabdomyolsis diagnosis is confirmed or strongly indicated. He said that he was disappointed by the Haltom verdict, but not disturbed. Lamb said that he had followed the Haltom trial closely and that he believed that Bayer’s strategy was to shift the blame to Haltom’s doctor, Lee Guinn, who testified at the trial. He called the tactic “unfair,” adding, “Bayer didn’t tell doctors that Baycol was much more dangerous” than other drugs in its class. When asked, Lamb also said that Haltom’s age and lengthy medical history made him less than the ideal plaintiff. “They picked the case,” Beck replied. “They had 1,400 cases to pick from.” Charles Zimmerman of Minneapolis, co-lead counsel for the 5,000-case Baycol multidistrict litigation, will face Beck in two trials set for June. A second Baycol trial is under way in Jackson, Miss. Beck won a second, smaller but not insignificant post-trial victory when the trial judge, James E. Klager, decided not to hold a hearing to consider sanctions against Bayer for sending a letter to more than 2,000 potential jurors living in the Corpus Christi area before trial. In the letter, a Bayer vice president for corporate communications recounted the company’s development of the drug and attempted to portray Bayer as acting “responsibly and appropriately” through all phases of Baycol’s life. The drug was voluntarily withdrawn from the market in 1999. Beck said that the letter went out without his knowledge, and that attorneys for both sides had determined early on that none of the 12 jurors and two alternates selected for the trial had actually received it.

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