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An unsatisfied plaintiff in a recent fen-phen trial has asked the judge to toss the jury’s verdict for the defense and enter a $5 million judgment in her favor, alleging the court improperly required her to prove twice that the diet drug Pondimin caused her heart-valve damage. In a motion for post-trial relief, lawyers for Utah resident Isabel Vega, 54, told Common Pleas Judge Gary Glazer that she is entitled to a judgment — and delay damages — because she proved causation and damages in the first phase of the bifurcated trial. Alternatively, Vega argued for a new trial of the liability portion of the two-phase proceeding in Vega v. Wyeth. In a cross-motion filed Monday, defense lawyers for Wyeth Corp. asked Glazer to deny Vega’s request and that of Camille Olsen, another plaintiff with similar demands. Wyeth says the jury’s verdict on liability was correct, noting that even where a jury finds a product warning was inadequate — as the Vega jury did — proximate cause is not presumed. “The plaintiff has the burden of proving two different causations — the medical cause, and that the alleged negligence was the proximate cause,” said Dechert lawyer Robert Limbacher, who represented Wyeth at trial. “The jury found there was not proximate cause.” Limbacher and co-counsel Andrew Gaddes plan to file a brief opposing the plaintiff’s motions next month, Limbacher said. During the first phase of the trial, which began March 21, the eight-member jury heard the parties’ arguments on damages. The jurors unanimously concluded the diet drug Pondimin had injured Vega’s aortic heart valve, awarding her $5 million in potential damages. In the second phase, the parties disputed Wyeth’s alleged negligence in manufacturing and marketing the weight-loss drug without providing adequate warnings that the drug could damage heart valves by causing them to leak. The same jury determined April 8 that Wyeth had negligently failed to provide “reasonable information” regarding the risks of valvular heart disease to Vega’s physician by the time of her last prescription. But the jury also said Vega had not proven that Wyeth’s failure to warn her physician was what caused him to prescribe the drug. Vega’s lawyers, including Houston attorney Rand P. Nolen and Philadelphia attorney Cynthia Clark, objected to the second interrogatory Glazer presented to the jury during the second phase. That interrogatory required Vega to show that Wyeth’s failure to warn her doctor about Pondimin’s risks caused the doctor to prescribe the drug. Stated another way: Would a different warning from Wyeth have stopped her doctor from giving her the prescription? The jury answered, “No.” Nolen contends the jurors should have been asked a different question: merely, “Did the negligence of Wyeth, if any, proximately cause the plaintiff’s injury?” The conflict over the interrogatory focused on the “learned intermediary doctrine.” That doctrine provides that a manufacturer can be held liable for a failure to warn unless it has provided an adequate warning to a learned intermediary, such as a prescribing physician, as opposed to warning the general public. Wyeth contended at trial that Vega didn’t offer any testimony to prove that a different warning would have affected her physician’s decision to prescribe her Pondimin. “Absent such proof, plaintiffs cannot establish that the failure to warn was the proximate cause of the injuries,” Wyeth said in court papers. But Vega contends that the doctrine doesn’t apply because Wyeth “completely failed” to provide any warning about valvular heart disease to the medical community, her lawyers argue in the post-trial motion. “The learned intermediary can’t be ‘learned’ if there was no warning,” Nolen noted. “Therefore, the doctrine can’t apply.” Vega’s motion cites a 1996 Pennsylvania Superior Court decision, Demmler v. SmithKline Beecham Corp., to support its position. Demmler took a plaintiff’s actions into consideration, as well as what the “learned intermediary” would have done under different circumstances. If Vega “had been provided with a warning about valvular heart disease, the risk of death, the risk of surgery, etc., she never would have taken the drug,” the motion states. Consequently, Nolen said, Interrogatory No. 2, as asked, “factored out entirely that the plaintiff has a right to make a decision. We lose the causal nexus entirely if we presume the patient can’t make a choice.” The interrogatory also factored out “any sort of reality,” Nolen said, referring to the fact that Vega’s prescribing physician wasn’t available to testify. Nolen said jurors told him after trial that they spent most of their hours deliberating Interrogatory No. 2 because they didn’t have any evidence upon which to decide it. Vega’s doctor no longer practices, moved out of Utah and couldn’t be located for deposition, Nolen said. Without the prescribing doctor available, Nolen and his team sought to introduce the jury to an opinion of a doctor familiar with the risks associated with Pondimin. Glazer precluded the testimony because it wasn’t from Vega’s specific doctor. Rightly so, said Limbacher. “They had to come forward with testimony from the prescribing doctor, and they did not,” he said. Vega, of Helper, Utah, took Pondimin for 13 months, starting in 1996. In 1997, Pennsylvania corporation American Home Products (now the Madison, N.J.-based Wyeth) withdrew the diet drug from the market after medical studies reported the drugs could cause heart trouble. Echocardiograms have shown that Vega’s “mild” heart-valve condition had progressed to a “moderate” one over time, lawyers said.An expert for the plaintiffs, Malcolm Taylor, testified during phase one that Vega’s condition would ultimately necessitate surgery to replace her valve, although she hasn’t yet progressed that far. Vega’s suit is one of thousands of individual cases pending in state court in Philadelphia against Wyeth, which used to market Pondimin. Generally, the plaintiffs have met certain requirements for opting out of a nationwide settlement, but they cannot collect punitive damages against the corporation. In an unrelated case, a Philadelphia jury Wednesday awarded another fen-phen plaintiff, Chris Jenson, $50,000 for her heart-valve injury after the first phase of a bifurcated trial. The parties have decided not to proceed to the second phase, lawyers said. Common Pleas Senior Judge Alfred DiBona Jr. presided.

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