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If at first an injunction doesn’t succeed, try holding the lawyer in contempt and enjoining him again. That seems to be the lesson that U.S. District Judge Harvey Bartle III drew from his dealings over the past few months with George M. Fleming, a Texas lawyer who was found in contempt by Bartle for ignoring an order that barred him from seeking punitive damages in a suit over the diet drug fen-phen. Although Bartle in Philadelphia and attorney Fleming in Houston are thousands of miles apart, they found themselves on a collision course over Fleming’s handling of a suit pending in Orange County, Texas. Bartle is the federal judge who currently oversees the massive settlement of the fen-phen litigation, including any issues that crop up in cases around the country brought by plaintiffs who took advantage of the settlement’s liberal opt-out policy. Fleming’s client, Clara Clark, is termed an “intermediate opt-out,” meaning that she joined the fen-phen settlement class but later decided to pursue a lawsuit instead of applying for a so-called “matrix award” in which her cash payment would have been calculated on a complex grid that accounts for the nature and severity of her heart valve injury, if any, as well as other health factors. In the settlement, American Home Products and Wyeth agreed to waive all statute of limitations issues so that plaintiffs could decide later whether to opt out and take their chances with a jury. But in return, the settlement also imposes a few strict conditions on the plaintiffs. Most importantly, the settlement papers said that such plaintiffs would give up their right to seek punitive damages and be required to limit the focus of their claims to two specific heart-valve conditions allegedly caused by fen-phen — “left-sided mitral valve regurgitation or pulmonary hypertension secondary to mitral valve regurgitation.” The dispute over Fleming’s handling of Clark’s case began last year when lawyers for Wyeth complained that Fleming was ignoring the prohibition against seeking punitives. In an October 2002 order, Bartle found that Fleming had avoided using the word “punitive,” but that his court papers showed he was planning a trial presentation designed to ask the jury to punish Wyeth. In his Orange County Court “bench brief,” Fleming noted that he intended to present evidence that “tens of thousands of people were injured” by fen-phen and that Wyeth “acted maliciously and with callous indifference.” Bartle said the brief also accused Wyeth of “corporate avarice,” and acting with “the goal of increasing profits at the expense of human life.” Siding with Wyeth, Bartle concluded that “the language of the bench brief is the language of someone who intends to present a case seeking to punish Wyeth for malicious conduct under Texas law.” Bartle noted that Wyeth’s lawyers had offered Fleming a stipulation in which it would admit to a breach of duty to Clark if the focus of the trial were limited to requiring proof from Clark that she suffered heart valve damage; that she took the Wyeth’s drug; and the amount of her compensatory damages. When its offer was rejected, Wyeth sought an injunction from Bartle. Fleming argued that Bartle’s involvement in the case was an improper interference with the evidentiary issues in a state court case. Bartle disagreed, saying he had “continuing and exclusive” jurisdiction to administer and enforce the settlement, and that Clark “is still a class member even after she exercises an intermediate opt-out.” The October opinion ended with a two-page order in which Bartle enjoined Clark and her lawyers from making any statements at the trial that related directly or indirectly to punitive damages. In December, Bartle issued a second opinion that enjoined Fleming and a second client, Linda Smart, from seeking punitives in a trial in Jim Wells County, Texas. Taking a stronger tone, Bartle said the fen-phen settlement contained no exception that would allow a plaintiff to argue the elements of a punitive damages claim as long as no punitives were requested. “Such a reading would create a giant loophole, having the effect of nullifying the prohibition,” Bartle wrote. As Clark’s trial date approached, Wyeth came back to court and asked that Fleming be held in contempt, saying his court papers showed that he was still planning to present a case for punitive damages even if he never specifically asked for them. Bartle agreed, saying “instead of ceasing his efforts to introduce the issue of punitive damages … Mr. Fleming has acted as if the [October] order does not exist.” Bartle ordered Fleming to purge himself of contempt by making a statement under oath that he intended to obey the order. He also ordered Fleming to turn over copies of all his trial exhibits for approval. In a conference, the judge ordered lawyers on both sides to try to work out agreements about which exhibits and testimony would be allowed. The lawyers were unable to agree. Now, in a 43-page opinion in Re: Diet Drugs (Phentermine, Fenfluramine, Dexfenfluramine) Products Liability Litigation, Bartle has issued a slew of rulings, mostly in Wyeth’s favor, on dozens of pieces of evidence and phraseology. “Our goal is and has always been to allow Ms. Clark to have her day in the Texas court as soon as possible as long as it is in conformity with the settlement agreement,” Bartle wrote. “It has now become clear to the court that the only effective way to safeguard the settlement agreement is to enter a detailed order before trial outlawing specific topics of inquiry which have the sole or predominant purpose of inflaming the jury to punish Wyeth and excluding individual exhibits and deposition testimony going to the issue of punitive damages. As a practical matter, once the trial is underway it will be too late for this court to prevent any breach.” In a three-page order, Bartle enjoined Clark and any lawyer representing her from “introducing any evidence, making any statement before or argument to the court or jury, related directly or indirectly to: � ” Punitive, exemplary or multiple damages, however described. � Malicious, wanton or other similar conduct of Wyeth, however described. � Any medical condition of plaintiff caused by Wyeth other than left-sided mitral valve regurgitation or pulmonary hypertension secondary to mitral valve regurgitation.” The order also prohibits any mention during the trial of Wyeth’s profits, size or financial condition; the amount or size of Wyeth’s sales of diet drugs or other products; Wyeth’s marketing or promotion of diet drugs to the extent that Wyeth placed marketing or promotion ahead of health or safety concerns; any deception or any destruction, hiding, overwriting, or deliberate miscoding of documents or information by Wyeth. Wyeth was represented by attorney Peter Zimroth of Arnold & Porter’s New York office.

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