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A particular 48 hours last week were especially good ones for pharmaceutical giant Wyeth and its defense attorneys at Reed Smith. Late Wednesday, Philadelphia Common Pleas Judge Mark I. Bernstein issued a decision in which he set aside a November 2004 jury’s $780,000 verdict against Wyeth and in favor of a fen-phen plaintiff. And Thursday morning, an eight-member Philadelphia jury returned a unanimous finding of zero damages as to both fen-phen plaintiffs at the conclusion of the first phase of a joint, reverse-bifurcated trial held before Bernstein. Bernstein’s ruling Wednesday is a setback for Houston, Texas-based personal injury firm Williams Bailey. The jury’s findings Thursday were against clients of Fleming & Associates, another Houston personal injury firm. Attorneys from Reed Smith defended Wyeth in all three actions. In his opinion in McMurdie v. Wyeth, Bernstein held that Geri McMurdie, a Utah resident, had “knowingly and voluntarily” assumed the risks of heart damage after being warned by her physician of the potential negative side effects of ingesting Pondimin in order to lose weight. “Under the specific facts of this case,” Bernstein wrote, “the evidence demonstrates that plaintiff voluntarily assumed the risk of the type of harm which occurred by knowingly and affirmatively entering into a relation with the pharmaceutical defendants involving significant risks of the same nature as the injury she has sustained. Plaintiff affirmatively, explicitly, tacitly and impliedly agreed to relieve the defendant of [those risks].” According to Wyeth’s press office, McMurdie was one of four Utah plaintiffs whose cases were heard before Bernstein this past fall. Bernstein has not yet ruled on Wyeth’s challenges as to the other plaintiffs’ verdicts. Bernstein noted in his opinion that although some Pennsylvania Supreme Court justices have supported the abolishment of the assumption of risk doctrine, a plurality of justices ruled in the 1993 decision in Howell v. Clyde that assumption of risk remains a bar to recovery. “The continued viability of assumption of risk as a defense is grounded in the injustice of a plaintiff claiming that someone else is responsible for an injury after she accepted the risk which unfortunately befell her,” Bernstein wrote. It was uncontested in McMurdie that McMurdie’s Pondimin prescription was “off-label” — that is, prescribed by her doctor outside of the parameters of U.S. Federal Drug Administration approval. McMurdie took the drug for six months despite being aware she was using it off-label, according to the opinion. In fact, her physician initially refused to prescribe her Pondimin due to her history of hypertension, but assented after her condition improved and he had warned her of the possible risks of using the drug — including a heart attack and/or death. Application of the assumption of risk doctrine to McMurdie’s case is not affected by the fact that she later claimed damages for an injury about which she had not been specifically warned, Bernstein argued. “Having knowingly chosen Pondimin’s potential benefit when used ‘off-label’ for unapproved long-term use against ‘unknown’ risks, plaintiff may not seek compensation because she had not been specifically told of a risk of ‘valvular regurgitation,’” Bernstein concluded. The cases in which the jury returned verdicts Thursday also involved claims of valvular regurgitation, according to lead counsel Robert Nicholas of Reed Smith. Trial for those cases — captioned Hoyt v. Wyethand Marlowe v. Wyeth � began with jury selection Feb. 14 before Bernstein, said Nicholas, whose co-counsel in those actions included Michael Scott, lead defense attorney in McMurdie. Like many of the other cases being handled in the Philadelphia Complex Litigation Center’s diet drug mass tort program, Hoyt and Marlowe were reverse-bifurcated, with damages for injuries being ruled on before liability. Nicholas said the cases involved Pondimin and Redux, another drug that has been used for dieting purposes. Ultimately, the jury awarded the plaintiffs no damages as to their claims of suffering from valvular regurgitation. “I do feel that the evidence in these cases strongly supported these verdicts,” Nicholas said. According to the Philadelphia common pleas docket, the plaintiff in Hoyt is from Utah, while the plaintiff in Marlowe is a Wisconsin resident. Both of those plaintiffs were represented by George Fleming of Fleming & Associates. The plaintiff’s attorney in McMurdie was Steven Kherkher of Williams Bailey. Neither immediately responded to calls seeking comment. While Philadelphia juries have awarded damages in some fen-phen cases tried locally, not many have had the chance to decide whether Wyeth was liable for the alleged injuries. The reverse bifurcation structure is how the Complex Litigation Center has conducted asbestos trials since the 1980s. The goal is to save time and encourage settlements by having a jury put a price tag on the case before delving into liability issues, court administrators have said. In most cases, Wyeth and the plaintiffs have settled for the amount of the verdict or an undisclosed amount soon after the damages verdict, lawyers involved in fen-phen litigation have noted. Of the diet drug cases brought in Philadelphia that have been reported to The Legal Intellilgencer, Wyeth last year took only two trials through to a liability verdict in the second phase — a $2.135 million jury verdict awarded to four plaintiffs in October 2004, and a $2.5 million December 2004 jury award for a group of three plaintiffs. Wyeth was ultimately found liable in the second phases of both trials. As of early December 2004, roughly 350 fen-phen cases brought in state court in Philadelphia had been settled, while 12,400-plus were pending. In 1997, Pennsylvania corporation American Home Products (now the Madison, N.J.-based Wyeth) withdrew its diet-drug combination known as fen-phen from the market after medical studies reported the drugs could cause heart trouble. After a multibillion-dollar nationwide settlement, approximately 50,000 to 60,000 individual cases remain against Wyeth. These are plaintiffs who met certain requirements for opting out of the national settlement and did, giving up their chance to collect punitive damages against the corporation. Opt-outs had until May 2004 to file suit against the company in federal or state court.

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