Defense Digest 3/09: Retained Just 90 Days Prior To Trial, MDWC&G Team Obtains Defense Verdict On Behalf Of Pharmaceutical Manufacturer In Seven-Year-Old Catastrophic Loss Case

By Pamela Lynde Bower, Esq.*

Florida - Pharmaceutical

Proving the benefits of a large defense firm with significant trial experience and a team approach to problem-solving, a Marshall, Dennehey, Warner, Coleman & Goggin team consisting of Michael J. Obringer (Jacksonville), Pamela Lynde Bower (Jacksonville), and Stephen Ryan (King of Prussia) obtained a defense verdict on behalf of a pharmaceutical manufacturer in a Florida case with potential exposure of $15 million to $20 million. What is remarkable about this verdict is that Marshall, Dennehey was retained less than 90 days before the case was tried.

The plaintiff claimed that in June 1998 he ingested an Ephedra-containing product manufactured by the pharmaceutical company, which caused him to suffer a severe stroke. After he was discovered, collapsed in his shower, he was taken to a prominent teaching and research hospital where he was treated by a board-certified neurologist. The stroke left him with life altering disabilities, including the inability to use one side of his body and a profound speech defect.

At the time of his stroke, the plaintiff was 26 years old and was working full time at a restaurant in a college town in Florida. In his pretrial deposition, he testified that he and a friend/fellow co-worker took the product for its stimulative effect and that he had last taken the product on the evening of June 5, 1998, collapsing around mid-day on June 6, 1998.

In 2001 the plaintiff filed a lawsuit against the product's wholesale distributor and the product's retailer.

Prior to MDWC&G's retention in 2008, the manufacturer had been defended by an attorney it had retained on its own. The manufacturer's liability coverage was not triggered until the eighth amended complaint was filed in 2008 -- and MDWC&G was not retained by the manufacturer's liability carrier until June of 2008. At that point in the litigation, the case had been pending for seven years, and trial was set to being on July 28, 2008.

Immediately after being retained by the pharmaceutical manufacturer's insurer, Pamela and Michael were able to obtain a short continuance of the trial, moving it to August 18, 2008. Within two weeks, they completed a review of all of the pleadings, depositions, medical records, and discovery responses in the then seven-year-old case and mapped out their defense strategy. They immediately retained a toxicologist (remarkably, co-defense counsel had not done so) and obtained an order to have Steve admitted pro hac vice in Florida. Steve has extensive experience in Ephedra litigation and related mediation, which proved invaluable as the case proceeded to trial.

Prior to trial, Pamela and Michael obtained pre-trial rulings that (1) the plaintiff could not elicit testimony about the FDA's ban of Ephedra (which went into effect after the plaintiff's stroke) and that (2) the hospital's medical records, containing multiple references to the plaintiff's use of recreational drugs, such as Ecstasy and methamphetamines, were admissible so long as they did not become a feature of the case.

Significantly, the two co-defendants essentially ceded their previously-retained experts to the MDWC&G team - so that at trial Michael and Steve divided the task of presenting the defendants' experts and took the lead in cross-examining the plaintiff's proffered experts.

The plaintiff's essential theory of the case was that because Ephedra works as a stimulant by constricting blood vessels, and because he had suffered a vasospastic stroke, the Ephedra-containing product was the cause of his stroke. Underlying this argument was the fact that the plaintiff was only 26 years old at the time of his stroke, and stroke most commonly occurs in an older population.

The treating neurologist testified that the plaintiff had sustained a spasm in the vertebral basilar system (the arterial system that supplies blood to the brainstem) and that the vasospasm was attributable to the product that the plaintiff had ingested.

A consulting stroke specialist testified that, based upon his review of MRA studies, he too was of the opinion that the plaintiff had suffered a vasospastic stroke.

Also testifying on behalf of the plaintiff was a labeling expert (and former FDA employee) who testified that the labels placed on the product were inadequate. The plaintiff's mother and father, both of whom had significant health problems but had largely devoted their lives to their son's care since his debilitating stroke, also testified, as well as a number of the plaintiff's friends and family.

The MDWC&G defense team's theory of the case was that the films indicated the stroke was most likely caused by a dissection of a basilar artery, not vasospasm; that the supplement the plaintiff ingested the day before his stroke contained a very small quantity of Ephedra and, as such, was a much less effective a stimulant than Ephedrine, which is routinely used in much more concentrated levels in medical procedures every day throughout the United States; and that given the lapse of time between ingestion of the product and the stroke, any Ephedra would have been long dissipated from the plaintiff's bloodstream at the time of his collapse.

The defense experts included a neuroradiologist; a professor of psychiatry, neuropathology, and neuro-psychopharmacology; and a toxicologist. The neuroradiologist testified that based upon his review of the MRI and MRA films, the stroke was caused by an occlusion or dissection of the basilar artery and that it was more likely than not a spontaneous dissection.

The professor of psychiatry, neuropathology, and neuro-psychopharmacology testified that there was no reliable scientific data to establish that Ephedra at any particular levels causes stroke, and certainly not in the amount that the plaintiff had ingested.

Finally, the toxicologist testified that based upon the known half-life of Ephedrine, by the time of the plaintiff's collapse, the amount of Ephedra in his system was negligible or non-existent.

The case was tried in Alachua County (Gainesville, Florida) over six days by Steve, Michael, and Pamela. There was considerable argument between the plaintiff and the defendants as to the appropriate jury instructions and form of the verdict. The MDWC&G team took the lead in articulating the global defense position on these matters.

The jury began its deliberations late on the afternoon of the sixth day of trial, deliberating late into the evening. After over five hours, it rendered a no liability verdict for all defendants, including the manufacturer. By the time the case was tried, the plaintiff had been suffering from the effects of the stroke for ten years.

Michael, Pamela, and Steve were able to work together seamlessly and obtained this verdict in large part because MDWC&G's attorneys use a team approach so that any office may tap the expertise and strengths of any other office, or particular attorney. This exchange of expertise and information makes it easy for the firm to react quickly to problems brought to it by clients anywhere along the East Coast.

MDWC&G has invested heavily in technology so that its offices communicate easily and share information timely. By use of computer technology, the Jacksonville office of MDWC&G was able to provide real-time assistance to its defense team during trial (even during hurricane conditions!), providing case law, memoranda, legal analysis, and other litigation support.

* Pamela is an associate in the firm's Jacksonville, Florida, office who can be contacted at (904) 358-4200) or plbower@MDWCG.com.