Tuesday, April 10, 2012

Winter Probably Discontented

We don’t like losing, but as we said not too long ago, unless you don’t try (or aren’t trusted with) hard cases, you’re going to lose every so often.  That goes for both plaintiffs and defendants.  So, after dropping a couple of big ones ($3.2 million in Stevens (Montana) and $1.2 million in Fussman (North Carolina)), the Aredia/Zometa folks had to be concerned when the jury came back last Friday in Winter. We’ve posted about certain – bad – legal rulings in Winter a couple of times here (letting Dr. Parisian testify, essentially unfettered) and here (allowing a fanciful “Dear Doctor” letter argument to avoid what should have been a slam-dunk failure to read learned intermediary defense). With a pro-plaintiff judge and Dr. Parisian it’s hard to be optimistic about the trial outcome.


We've been informed that the pro-plaintiff judge (even plaintiff's counsel can't deny that) who made the pre-trial rulings did not try Winter.  Rather a magistrate judge tried the case.  Thus, our comment about a "pro-plaintiff judge" at trial was unwarranted, given that fact, and we take it back.


But after a little more than a day of deliberations, the Show Me State jury in Winter decided it hadn’t been shown very much : it brought back a plaintiff’s verdict, but only for $225,000 in compensatories.  That’s after the plaintiff sought $750,000 in compensatory damages and $7.5 million in punitive damages during closing arguments (so we’ve been told).  While that’s a “loss” for our side – in the sense the jury awarded the plaintiff damages – it’s losing only in the Pyrrhic sense.  The plaintiff’s lawyer’s cut of that (usually 33.3% or 40%) isn’t going to bring much of a return on the litigation investment of time and effort.  And we haven’t even begun to talk about costs….  Dr. Parisian doesn’t come cheap (volume discounts anyone?).  You’ve probably heard the phrase “going broke saving money.”. Well, it’s equally possible to go broke winning cases, if the “wins” are like Winter.

If you’re keeping score at home, Winter is the seventh A-Z case to be tried (in state or federal court) where juries are asked to balance the risk of osteonecrosis against that drug’s benefit in treating cancers that have metastasized to the bone.  The defense won four of the previous six – by that we mean outright defense verdicts – in Hogan (E.D.N.Y.); Brodie (E.D. Mo.); Kyle (W.D. Ky), and Bessemer (N.J. Super).

Congrats, then, to Joseph Price and Linda Svitak of Faegre; Gregory Chernack of Hollingsworth, and Deirdre Gallagher of Foley & Mansfield.