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The pharmaceutical manufacturer Wyeth has asked a Philadelphia judge to declare a mistrial after a jury last week awarded a total of $200 million in potential damages to two Utah women who claimed that diet drugs once marketed by Wyeth caused their heart valves to leak. The verdict became public Friday after being under seal for three days at the order of Common Pleas Judge Paul P. Panepinto. The jury’s verdict came at the end of phase one of a two-phase trial. Panepinto has postponed the trial’s second phase — which would determine whether Wyeth is liable for the damages — until July 25. Trial counsel for Wyeth were Ezra D. Rosenberg and Andrew R. Gaddes of Dechert’s offices in Princeton and Philadelphia, respectively. A Wyeth spokesman said the parties jointly requested the postponement to give them time to discuss a possible resolution of the two cases with the two Houston law firms representing the plaintiffs — as well as a possible resolution of all the firms’ fen-phen cases. Attorneys at the firms, Williams Bailey Law Firm and Blizzard McCarthy & Nabers, did not return calls for comment yesterday. Wyeth says Panepinto also agreed to delay until July 25 his ruling on its motion asking him to vacate the verdicts and declare a mistrial. In that motion, counsel for Wyeth blame the jury’s “runaway” verdict on “repeated inappropriate conduct” of the plaintiffs attorneys at trial that was intended to “inflame the jury against Wyeth and induce it to assess damages upon emotion rather than the facts of the case.” An attorney for Wyeth, Michael Scott of Reed Smith, said the verdict was “clearly” excessive considering the outcomes of other recent fen-phen trials in Philadelphia that involved plaintiffs who had similar claims about mild or moderate heart valve damage but also had few or no symptoms to show for it. Several juries have refused to award any damages to fen-phen plaintiffs at trial. When juries do award damages, those awards have rarely topped $250,000 for an individual plaintiff. Rand Nolen, a Houston attorney who has represented plaintiffs at several fen-phen trials, said, “Some juries are going to be more impressed than others. A lot depends on the facts of the individual case as to whether you’re going to be successful in Philadelphia or not.” Scott, who did not represent Wyeth at trial, said he believed Panepinto sealed the verdict because of concern about its validity. Panepinto’s order not to discuss the verdict came soon after the eight-member jury announced its decision around 2 p.m. on May 24. The jurors had left the courtroom to begin deliberations and have lunch less than two hours before. They did not ask any questions or ask to see any evidence, according to Wyeth’s motion. It was not immediately clear whether the parties asked Panepinto to seal the jury’s verdict or the judge acted sua sponte, although a Wyeth spokesman, Doug Petkus, said there were no motions from the parties to seal the verdict. Panepinto did not return a call for comment yesterday. His law clerk said the verdict on potential damages had been entered into the record but was not submitted to the prothonotary because the liability phase of the trial had yet to occur. The jury last week awarded $100 million in potential compensatory damages to each plaintiff. They are Margie Paul, a truck driver from Orem, Utah, and Elaine Karician, a teacher from Roy, Utah. Lead counsel for Paul and Karician was Steven J. Kherkher of the Williams Bailey firm. He did not return calls for comment yesterday. The cases, Paul v. Wyeth and Karician v. Wyeth, are two of thousands pending in state court in Philadelphia against Wyeth, which used to market Pondimin and Redux. The corporation, then known as American Home Products, withdrew the diet drug compound from the market in 1997 after medical studies reported it could cause heart trouble. Generally, the plaintiffs with cases pending in the Complex Litigation Center have met certain requirements for opting out of a massive nationwide settlement approved by a federal judge; however, opt-out plaintiffs cannot pursue punitive damages. In March, Wyeth agreed to a settlement structure it negotiated with a group of attorneys representing 40,000 of the 60,000 plaintiffs who opted out of the nationwide settlement. If Wyeth’s negotiations with the firms of Williams Bailey and Blizzard McCarthy & Nabers are successful, they would presumably join the opt-out settlement program, according to a Wyeth statement. Should the trial resume in July, the jury would be asked to determine Wyeth’s liability. According to Wyeth’s motion, both Paul and Karician had “mild to moderate” aortic valve damage, and Karician had moderate mitral valve damage. Both testified that they are physically active, and Wyeth noted that no expert had testified that either plaintiff had symptoms caused by their leaky heart valves. Wyeth detailed the special damages the plaintiffs claimed and determined the $100 million verdicts were still some 400 times what their maximum special damages would be. “These grossly excessive verdicts are, in and of themselves, proof positive that the jury was swayed by passion and prejudice, and disregarded the admitted facts of the case,” the motion states. “Even a cursory review of the record shows an obvious explanation for these excessive awards — the repeated efforts of plaintiffs’ counsel to influence the jury with inadmissible (and often outright false) ‘facts’ and to make a naked appeal for what amounted to punitive damages.” Among other allegations, the motion contends that one of the plaintiffs attorneys’ implied during opening argument that Wyeth was “refusing to accept any responsibility,” and, during the plaintiffs’ closing argument, argued that Wyeth “made a decision that if you injure somebody it’s cheaper to defend it than take responsibility.” Wyeth contended that the suggestions were false and precluded by the plaintiffs agreements under the nationwide settlement, which bars punitive damages. The plaintiffs sought up to $3,000 a year for medical monitoring and wanted to be reimbursed for the combined $1,424 they spent on echocardiograms, tests that produce an images of the heart. The plaintiffs did not claim any lost wages or reduced earning capacity — both work full time at the jobs they had prior to taking the diet drugs, according to the motion. An expert for the plaintiffs testified that they were at an “increased risk” of needing surgery to correct their valve damage. The cost of any surgery could range from $41,000 to $150,000, according to the plaintiffs’ witnesses. Wyeth’s motion for a mistrial on Friday was not its first during this trial. Wyeth attorneys asked Panepinto for a mistrial May 20 — two trial days before the verdict — on the grounds that the plaintiffs were placing improper and prejudicial issues of liability before the jury during the damages phase of the trial. According to Wyeth’s more recent motion, Panepinto denied the request.

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