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Despite controversy over Vioxx and other arthritis painkillers that has shone an unwelcome spotlight on the pharmaceutical industry, defense lawyers won a victory for a drug manufacturer, Warner-Lambert Co., in a San Antonio trial involving the withdrawal of the diabetes drug Rezulin. On Feb. 18, the jury in Robert B. Brook v. Warner-Lambert Co., tried in the 288th District Court, returned a verdict in favor of the defense. The 10-woman, two-man jury found that Rezulin did not cause the damage to Brook’s liver, as alleged. Parke-Davis, a division of Warner-Lambert, pulled Rezulin off the market at the request of the U.S. Food and Drug Administration in March 2000. According to a statement that the U.S. Department of Health and Human Services issued at the time of the withdrawal, Rezulin is toxic to the liver. Brook, 77, filed the suit in March 2002. According to his third amended petition, Brook began taking Rezulin in about September 1997 and remained on the drug until June 1999. As alleged in his petition, Brook began experiencing symptoms associated with liver disease/failure after he took Rezulin and now has cirrhosis of the liver. Although Rezulin was “heralded as a new and safe alternative treatment for Type II diabetes,” research, development and clinical trials that Warner-Lambert conducted confirmed the drug was “very toxic to the liver, heart and blood systems, which could lead to serious health injuries, including death,” Brook alleged in the petition. Among other things, Brook alleged in his petition that Warner-Lambert was negligent in its design, testing and distribution of Rezulin; he also alleged that the drug maker failed to warn consumers about the problems with its product. Brooks alleged that Warner-Lambert misrepresented Rezulin to physicians and consumers, and attempted to conceal results of studies that showed the drug was dangerous. He sought $10 million in damages. Warner-Lambert denied all the allegations in its answer. “Our message was we had a good drug, but it had risks,” says Jack Urquhart, Warner-Lambert’s lead defense counsel and a partner in Houston’s Beirne, Maynard & Parsons. While the month-long trial was going on, international media coverage focused on the controversy over Class 2 painkillers, such as Vioxx, which Merck & Co. withdrew from the market in 2004, and Celebrex, manufactured by Pfizer Inc., the parent company of Warner-Lambert. Urquhart says a “shower of publicity” fell on the pharmaceutical industry before and during the trial. “I don’t think any of the major network morning shows didn’t have a feature on some aspect of the pharmaceutical industry,” Urquhart says. “Because of all the publicity, it was a challenging environment in which to try a pharmaceutical case,” says Joshua Brockman, an attorney with Houston’s Littlepage Booth, which represented Brook. Beirne, Maynard partner Laura DeSantos, Urquhart’s co-counsel in representing Warner-Lambert, says it wasn’t just an issue in the news media. People were talking about medication concerns at the courthouse, in doctors’ offices and in the schools, she says. “It was a very timely issue, trying this case in an environment in which this seemed to be on everybody’s lips,” DeSantos says. NO SMOKING GUN The television series “ER” also focused on the pharmaceutical industry in its Jan. 27 episode, “The Providers.” Urquhart says a character on the series referred to Rezulin as a bad or dangerous drug. DeSantos says she watched that “ER” episode, which dealt with a young woman who had suffered kidney damage after taking a medication for seizures. DeSantos says Rezulin was mentioned in a scene in which one doctor talked about the history of medications — such as the one at issue in the episode — that had caused problems. “This was in January, when were in the middle of trial,” DeSantos says. The trial that ended on Feb. 18 was the second one in Brook. Acting on the defense’s motion, Judge Lori Massey, of the 288th District Court, declared a mistrial after only one witness took the stand in the first trial that began on Jan. 3. DeSantos says the defense had to make a motion for mistrial after media coverage of the alleged risks associated with using Pfizer’s Celebrex. Pfizer already had been mentioned in the case through the judge’s instructions to the jury, she says. The judge’s concern about the media coverage of Pfizer and Celebrex had an impact on the plaintiffs attorneys. Brockman says Massey ordered the attorneys not to mention Pfizer during the trial, an action that Brockman says he has not seen a judge take before. “It hasn’t happened in any other Rezulin case” that the plaintiffs attorneys have been involved in, Brockman says. Urquhart says he encountered more “overt hostility” toward pharmaceutical companies in the jury panels called for the two trials than he has in past trials. “They said things like, “I hate drug companies,’ ” Urquhart says. DeSantos says she saw the most hostility in the panel of prospective jurors called for the first trial. One man, who had been a Celebrex user, cited concerns about the FDA process for approving drugs, she says. The defense had to take into consideration that jurors not only had read or seen news reports about pharmaceuticals but also had taken drugs that now are under fire, DeSantos says. Urquhart says the verdict is partly the result of the defense’s strategy to seek jurors who understood the scientific evidence in the case. In some instances, Urquhart says, that meant being strict about allowing people to be dismissed from the panel, because they had scheduled vacations or thought they had too many business obligations to sit through a month-long trial. “Normally, I’m a bit more generous… . But what we were trying to get is as many folks as we could who, either by education or experience, could sit through this kind of difficult scientific testimony,” Urquhart says. Terry Tottenham, an Austin, Texas, attorney who frequently defends pharmaceutical companies but was not involved in Brook, says science often supports a proposition that is counter to what one would think is common sense. “You need people [on a jury] who will listen to the scientific explanations,” says Tottenham, a partner in Fulbright & Jaworski. “I think to win that case, [the defense] had to convince the jury the science on one side was better than the science on the other side,” says Clark Brown, a Bexar County, Texas, assistant district attorney who served as an alternate juror in Brook. Brown says the case was mostly about science. He says the plaintiff was on the stand only about two or three hours, while some of the scientific experts testified for two days straight. “It was important for jurors to look at what happened here,” Brown says. Brockman says Rezulin cases generally turn on causation and whether the drug hurt a plaintiff in a particular case. Notes Brockman, “The jury did not find a smoking gun that this drug hurt our client.”

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