Late last Friday, after nearly four weeks of trial proceedings, an Orlando jury returned a verdict in favor of the defendants in a civil trial alleging the antidepressant Zoloft caused Gary Torrence to commit suicide.
Our friends at Legal Newsline have more details on the case available here. This was the second time the case went before a jury after an earlier mistrial last year. Pfizer, the drug’s manufacturer, was no longer a party to the case when when trial proceedings began last month.
The full trial was video recorded and webcast gavel-to-gavel, which is available for viewing via Courtroom View Network.
MARIANNA, FL – The only “Engle” progeny tobacco trial scheduled for March began this week in Jackson County Circuit Court.
Emmon Smith, a minister who began smoking in the 1940′s, later developed lung cancer and sued R.J. Reynolds Tobacco Company (NYSE: RAI). Smith’s case is similar to thousands of individual suits filed against tobacco companies, after the Florida Supreme Court vacated the historic “Engle” class action verdict, and decided each plaintiff’s case against tobacco companies must be tried separately.
This is the second time Smith’s case has made it all the way to trial. In January of last year, a jury could could not be seated, and the trial was canceled. Jurors in Engle cases must commit to at least two to three weeks in the courtroom which sometimes makes seating a jury difficult.
With a jury successfully empaneled, opening statements finally took place this week. Representing Emmon Smith, attorney Richard Diaz told jurors R.J. Reynolds’ products were a major cause of his client’s addiction to nicotine, and the company concealed that danger to make huge amounts of money over decades. “Their choices were sales over safety…concealment over disclosure,” he said. “You will hear about conspiratorial conduct, and how it lasted for over 50 years.”
Diaz went on to describe how as an attorney for the plaintiff, he was responsible for the burden of proof associated with Emmon Smith’s claims. “I am happy, I am elated, to have that burden. I’m going to carry that burden, starting today, all the way to the very end of this trial,” he said. “By the time you hear the evidence in this case, your verdict will be for Reverend Smith.”
Representing R.J. Reynolds, attorney Stephanie Parker of Jones Day told the jury during her opening statement the trial is about Emmon Smith’s individual choices. “He chose to smoke, and he knew that smoking was dangerous,” said Parker. “He preached about the dangers of smoking in his own church for years.”
Parker described how other risk factors, like carcinogenic chemicals present when Smith worked as a farmhand, could have also contributed to his cancer. She made a point of detailing how Smith has been diagnosed with cancer on four separate occasions but is only suing for damages related to the first diagnosis. His current cancer, which is not part of the current suit, spread to the lung as opposed to originating there, and she said the evidence will show proper testing was never done on Smith’s initial cancer to verify it actually originated in his lung.
In contrast to the sweeping statements about the tobacco company’s conduct over decades made by the plaintiff’s attorney, Parker stressed the current trial only involved individual claims. “This case is not about smoking in general, it’s not about tobacco companies in general,” said Parker. “It’s only about Mr. Smith.”
The trial before Judge John Fishel is expected to last up to a month and is being webcast live by Courtroom View Network, which has covered nearly all Engle trials to date. The most recent Engle trial resulted in a $20 million verdict, plus millions more in punitive damages, against Lorillard Tobacco Company. R.J. Reynolds could also have to pay millions if the Jackson County jury returns a verdict for the plaintiff in this case.
The case is Emmon Smith v. R.J. Reynolds Tobacco Company, No 09-719 CA in Jackson County Circuit Court, Florida.
Attorney Richard Diaz delivers opening statements on behalf of Emmon Smith (Image via the CVN webcast of the trial)
ATLANTIC CITY, NJ – Opening statements took place Monday in a civil trial against drug manufacturer Merck & Company (NYSE: MRK) involving the widely-prescribed drug Fosamax.
The lawsuit in Atlantic County Superior Court claims the drug, which is used to treat the bone disease osteoporosis, caused serious injury to plaintiff Jo-Ann Sessner’s jaw, and that Merck failed to warn of Fosamax’s potential serious side effects.
Many patients who took Fosamax have filed lawsuits alleging the drug caused a condition called osteonecrosis of the jaw, where the actual jaw bone dies and can lead to the need for extensive surgery. Sessner’s case is the second to actually go to trial in state court and only the sixth Fosamax trial over all after four others in federal district court. One of those federal lawsuits resulted in the only plaintiff’s award to date.
Sessner’s attorney, Tim O’Brien of Levin Papantonio, told the jury during opening statements taking Fosamax ultimately hurt his client. “It did nothing for her,” he said to the court. “It only did things to her.” He went on to describe how osteonecrosis could only occur because of taking Fosamax, and that Merck intentionally withheld evidence of side effects to protect profits. “What Merck does is scare women,” he said while describing the company’s aggressive marketing of the drug to women with bone diseases like osteoporosis.
Representing Merck, attorney Christy Jones of Butler Snow told jurors Fosamax did its job and benefited Sessner. “It was a good thing Ms. Sessner was prescribed Fosamax,” said Jones. “It was a good thing because it prevented fractures, and some 10 years later Ms. Sessner has never had another fracture. Fosamax worked.” Sessner originally began taking Fosamax after suffering a hip fracture without any fall or injury due to low bone density.
Jones told jurors the evidence would show Sessner developed osteonecrosis in her jaw, after a tooth became infected and had to be removed. “This infection has nothing to do with Fosamax, but it’s that infection that ultimately led to the jaw problems and the injuries,” she said. Jones also pointed to other factors, like smoking, that put Sessner at risk for jaw problems.
Jones represented Merck at the first Fosamax trial last year in New Jersey, and the jury ultimately found Fosamax did not cause osteonecrosis in that case. With her trademark dark clothing and hypnotic southern accent, she also scored a victory for Johnson & Johnson in this same court last year at a trial involving the antibiotic Levaquin.
The current trial will run through at least mid-April, and based on prior cases Sessner’s attorneys will likely ask for millions of dollars in damages. The full trial will be webcast live via Courtroom View Network, which also webcast the first Fosamax trial in state court last year.
The case is Jo Ann Sessner v. Merck Sharp & Dohme, Corp., ATL-L-3394-11.
MIAMI, FL – A jury has determined Lorillard Tobacco Company (NYSE: LO) must pay a deceased smoker’s widow $20 million and possibly millions more in punitive damages at an ongoing civil trial in Miami-Dade County Circuit Court.
During tense moments before the reading of the verdict, attorneys clashed over the defense’s motion for a mistrial. Lorillard’s attorneys argued that due to the unavailability of the judge and the jury having to wait for his return after reaching a verdict, that jurors were allowed to continue deliberations and thus could not deliver their “original untainted verdict.”
While the jury deliberated, Judge Peter Lopez had left the courthouse for a colleague’s memorial service. According to a court transcript read back during the mistrial argument, after the jury informed the bailiff they had a verdict he said the judge had stepped away but would return shortly. Dorothy Alexander’s attorney argued against the motion for a mistrial, saying there was no evidence this delay impacted the jurors and the judge returned to the courthouse moments later. Judge Lopez denied the motion from the bench.
Had the motion been granted, this trial would have met the same fate as a growing number of other Engle tobacco cases which recently ended in mistrials. Four separate tobacco cases ended in mistrials last month for unrelated reasons. Each Engle tobacco trial takes roughly two to three weeks to complete, and Florida courts are struggling with how to process the thousands of these complex cases slowly working their way through the system.
The original Engle class action was a landmark case awarding billions to smoking victims and their families, but the Florida Supreme Court later ruled each case against the tobacco companies must be tried individually, with only a few dozen actually going to trial each year so far. A substantial number of Engle verdicts have been appealed, largely by the tobacco companies, and a recent appellate court’s reversal of an Engle plaintiff’s $2 million verdict suggests this trend will continue.
The jury returns to Judge Lopez’s courtroom next week to hear arguments in the trial’s punitive damages phase, which could force Lorillard to pay additional millions of dollars to Dorothy Alexander. These proceedings will be webcast live by Courtroom View Network, which has covered nearly all recent Engle tobacco trials to date.
ATLANTIC CITY, NJ – Opening statements are scheduled for March 1st in the second lawsuit to go to trial in state court involving the widely-prescribed drug Fosamax.
Plaintiffs Amelia Flores and Jo Ann Sessner filed lawsuits against the drug’s manufacturer, Merck & Company (NYSE: MRK), alleging they suffered jawbone injuries after taking Fosamax to treat osteoporosis, a disease that causes a loss of bone density.
Merck faces a number of lawsuits after patients taking Fosamax, also known as as a bisphosphonate or alendronate sodium, developed osteonecrosis of the jaw. This condition results in death of the actual jaw bone, which can cause serious dental problems and require surgery. In New Jersey, a number of individual cases were consolidated into a mass tort overseen by Judge Carol Higbee, which also includes Teva Pharmaceuticals (NASDAQ: TEVA) and Bayer Pharmaceuticals, who marketed generic versions of the drug.
Merck denies the allegations, and during earlier trials claimed other underlying health conditions caused patient’s jaw problems, and that the company provided adequate warnings about potential side effects to physicians and patients. Last year, in the first New Jersey state court trial, the jury returned a verdict in favor of Merck, determining Fosamax did not cause osteonecrosis.
Besides the cases in state court, a number of Fosamax cases were consolidated in federal court before U.S. District Judge John Keenan in New York City. So far five cases have gone to trial, resulting in three verdicts for Merck, one plaintiff’s verdict and one mistrial. In the sole plaintiff’s victory, jurors initially awarded a Florida woman $8 million dollars, but Judge Keenan later reduced that to $1.5 million.
The current trial is scheduled to last at least three to four weeks and will be webcast live, gavel to gavel, by Courtroom View Network. CVN also recorded the only other New Jersey Fosamax trial so far, Rosenberg v. Merck in March of last year.
The cases are Jo Ann Sessner v. Merck Sharp & Dohme, Corp., ATL-L-3394-11 and Amelia Flores v. Merck Sharp & Dohme, Corp., ATL-L-744-09 in the Superior Court of New Jersey, Atlantic County.
Watch In re Fosamax live on Courtroom View Network starting February 27th for jury selection or March 1st for opening statements.
Here at Courtroom View Network we spend all day watching video of real trials in real courtrooms across the country. For a quick break, here are our Top 10 favorite fictional (or re-enacted) courtroom scenes, some of them more realistic than others…
1. Ghostbusters II – 1989 Sadly cameras aren’t allowed at trials in New York state courts, so if Peter Venkman, et al., really were on trial we wouldn’t be able to watch, but that’s hardly the craziest thing that happens in this scene. Renowned character actor Harris Yulin steals the show as Judge Stephen “The Hammer” Wexler.
2. Inherit the Wind – 1999 (remake) The original version of this Spencer Tracy classic often appears on similar lists, and rightly so, but the overlooked 1999 remake with Jack Lemmon and George C. Scott (who both passed away shortly afterwards) holds up on its own. The Scopes Monkey Trial obviously holds a special place in our hearts here at CVN, being one of the first trials broadcast live over the radio.
3. Anatomy of a Murder – 1959 After seeing George C. Scott in a courtroom scene at the very end of his career, here he is 40 years earlier at the beginning, across from opposing counsel Jimmy Stewart. The original best-selling novel was written under a pseudonym by a justice of the Michigan Supreme Court, and starting a movie tradition of interesting cameos on the bench in courtroom scenes, the judge is played by actual attorney Joseph Welch, an active participant in the McCarthy Hearings.
4. The People vs. Larry Flynt – 1996 Yep, that’s the real Larry Flynt playing former Ohio state judge William J. Morrissey, who presided over Flynt’s criminal obscenity trial in the early 1980′s. And no, your eyes aren’t playing tricks on you, that’s actually Democratic strategist James Carville, still with some hair, playing the prosecutor.
5. My Cousin Vinny – 1992 Believe it or not, this is one of the most realistic courtroom movies out there in terms of criminal procedure. Strip away the comic performance, and the actual attorney arguments aren’t (that) different from what you’d find at a real trial. On the bench is of course Fred Gwynne, known for playing Herman Munster, as Judge Chamberlain Haller.
6. Bananas – 1971 In this Woody Allen classic we find Fielding Melish, a nebbishy New Yorker who accidentally becomes president of a small fictional South American county, on trial for fraud. The scene features very memorable testimony from “J. Edgar Hoover” and in a preview of courts increasingly adopting alternative sentencing, all charges are dropped on the condition Melish doesn’t move into the judge’s neighborhood.
7. Amistad – 1997 Sir Anthony Hopkins portrays John Quincy Adams arguing before the United States Supreme Court in the famous 1841 “freedom suit” of United States v. The Amistad Africans, 40 U.S. (15 Pet.) 518 (1841). Adams, who won the case for his clients, was at the time of the oral arguments both a former President of the United States and current member of the House of Representatives.
8. Monty Python – “Court Charades” – 1970 For anyone who’s ever sat through the lengthy reading of a complex, multi-count verdict, this comedy sketch set in London’s Central Criminal Court shows how it could always be much, much worse.
9. A Few Good Men – 1992 You can’t make a list of awesome courtroom scenes without including this one, because if you don’t then everyone will ask, “What about the scene from ‘A Few Good Men’ with Tom Cruise and Jack Nicholson?” So here it is.
10. To Kill A Mockingbird – 1962 Gregory Peck gives a seminal performance as Atticus Finch, arguably the most famous fictional lawyer in American history. This dramatic scene from closing arguments, with Finch begging the jury to do their duty, has likely been the inspiration for countless future attorneys to go to law school.
In Dade County Courthouse’s first Engle progeny trial of the year, jurors heard opening statements in the Larkin v. RJ Reynolds trial in front of Judge Valerie Manno-Schurr. By the end of the first day, a theme developed in the courtroom around the nature of choices, made both by individuals who smoke cigarettes, and the companies that manufacture them.
Born in 1944, Carole Larkin was a daily smoker by the age of nineteen, smoking on average one pack per day for thirty five years until she quit in 1988. Prior to her quitting, she developed pre-cancerous cells on her tongue which later led to Dysplasia and ultimately to floor-of-mouth cancer. She died in 2000.
Plaintiffs contend that Larkin was a member of the Engle Class, that she was addicted to cigarettes containing nicotine, and that the negligence of RJR was a legal cause of loss, injury, and damage. However, according to Larkin’s attorney, Phillip M. Gerson of Gerson & Schwartz, “we don’t say that the smoker has no responsibility. It’s not a hundred percent her fault. It’s a shared responsibility”.
At the close of his opening statement, Gerson asked jurors to consider “the choices that this ordinary housewife made over her lifetime compared to the choices that this large corporation that conspired with other companies to conceal the truth made just so they could make more money”.
“Any smoker can quit. Three thousand quit every day” claimed defense attorney Anthony Upshaw, of McDermott Will & Emery. In addition, Upshaw contends Larkin was not a member of the Engle class since she quit in 1988, prior to the class’s 1990 beginning and that she was not addicted to nicotine. In one of the more memorable lines regarding nicotine addiction, Upshaw declared “each time she decided to quit smoking she was successful”. Larkin stopped smoking once for a year, resumed, then ultimately quit for good in 1988.
Picking up on the theme of personal responsibility and choice introduced by plaintiff’s counsel, Upshaw asked jurors: “Mrs. Larkin accepts some responsibility for her smoking, but only some, right? Nobody but Carole Larkin could have made the choice, not ten percent, not twenty percent. A hundred percent, only she could have made that choice”.
SEBRING, FL – The first major tobacco lawsuit of 2012 ended yesterday with RJ Reynolds (NYSE: RAI) and Philip Morris (NYSE: PM) being ordered to pay a combined $2.5 million in damages to a deceased smoker’s surviving husband.
Following nearly three-weeks of trial testimony a Highlands County jury found the two tobacco companies responsible for the smoking-related lung cancer of Theo Hallgren’s late wife, Claire Hallgren.
After determining Claire Hallgren was 50% responsible for her addiction and awarding $2 million to Theo Hallgren in compensatory damages, the jury went on to order RJ Reynolds and Philip Morris to pay $750,000 each in punitive damages.
Hallgren’s lawsuit was originally part of the 2006 “Engle” class-action case, which resulted in a historic $145 billion dollar verdict. The tobacco companies appealed, and the Florida Supreme Court later ruled each case must be tried individual. Hallgren’s trial was the first of dozens scheduled across Florida state courts in 2012 with thousands of other cases still awaiting trial dates.
During closing arguments attorney T. Hardee Bass, of the firm Searcy Denny, told jurors in light of the tobacco company’s current billion-dollar profits, they needed to send a strong message with a large verdict. “That’s what this morning is about, punishment,” said Bass. “Punishment for the harm they caused to Claire Hallgren.”
Representing Philip Morris, attorney William Geraghty of Shook Hardy Bacon told the jury the company had made massive, systemic changes since the 1950′s, when tobacco products were marketed more aggressively. FDA regulation and Philip Morris’ own practices meant they had already taken enough corrective action. Dal Burton of Womble Carlyle, representing RJ Reynolds, said his client had also eliminated practices from the “1930′s and 40′s that are today an anathema.”
Attorneys for Hallgren asked the jury for $19 million in damages, and the reduced verdict represents recent success tobacco company defendants have had in limiting punitive damages amounts after much larger verdicts in earlier Engle trials.
Engle trials are scheduled throughout 2012 across the state of Florida. Another is currently underway in Miami, with at least three more trials set to begin next month. Courtroom View Network covered the Hallgren trial gavel to gavel, as it has for nearly all Engle tobacco trials to date.
The case is Theo Hallgren, for the estate of Claire Hallgren v. Philip Morris USA, RJ Reynolds Tobacco Company, No. 10-761 in the 10th Judicial Circuit Court of Florida.
LAS VEGAS, NV – A civil trial has resumed after a nearly three-month break in a lawsuit against Teva Pharmaceutical Industries (NASDAQ: TEVA) and their distributor Baxter International (NYSE: BAX) related to Hepatitis-C contamination at a Las Vegas endoscopy clinic.
The trial was halted last October by the Nevada Supreme Court, while they considered a motion from the defendants for a change of venue, which claimed pre-trial publicity from large verdicts in previous related cases would prevent the selection of an impartial jury in Clark County. The Supreme Court issued an opinion denying the motion last December, and trial proceedings resumed earlier this month. Read the the court’s decision here.
In the underlying case, plaintiff Stacy Hutchison alleges Teva and Baxter are responsible for her contracting Hepatitis-C, due to the companies’ sale of the anesthetic Propofol in large containers, later used by Dr. Dipak Desai for multiple uses with contaminated needles at his endoscopy clinics. Dr. Desai, who has declared bankruptcy, is awaiting trial on criminal charges later this year. Defendants also include Sicor, Inc. and McKesson Medical-Surgical (NYSE: MCK).
Hutchison’s case is one of many similar lawsuits filed against the pharmaceutical companies in Las Vegas. Jurors returned a $90 million verdict against Teva and Baxter in another trial a few weeks prior to the start of Hutchison’s, and the first Propofol-related case to go to trial resulted in a verdict exceeding $500 million, the largest in the state’s history.
The defendants, represented on appeal by Lewis Brisbois Bisgaard & Smith and Texas-based McDonald Devin, in their initial brief to the court, claimed it would be “impossible” to select an unbiased jury due to the “vast number of Clark County residents who have a direct interest in this litigation and due to media coverage that has been overwhelmingly negative to towards the defendants.” They requested the trial be transferred to Reno.
Hutchison’s attorneys opposed the request, as did the trial court judge, and ultimately the Supreme Court, which wrote “…the record evidence demonstrated that, although this case and related cases received a fair amount of pretrial publicity…it was not of a kind or to the extent that it tainted the jury pool.”
The trial is scheduled to continue through at least January 30, with another related endoscopy clinic trial set to begin next month. Despite the unusually lengthy recess, the jury remained under instructions from the court not to independently research or speak about the trial.
Courtroom View Network is providing a gavel-to-gavel video webcast of the Hutchison trial, as it has done for the three other endoscopy clinic trials to date. The case is Stacy Hutchison v. Teva and Baxter, Case Number 08A562216, Clark County Circuit Court, Nevada before Hon. Jerry Wiese.
Sarasota, Florida – A six-member jury found in favor of Sarasota’s oldest law firm last week in a legal malpractice lawsuit with potentially millions of dollar stake.
The 86-year old law firm of Williams Parker Harrison Dietz & Getzen faced legal malpractice charges brought by Marc and Teresa Basnight, who claimed negligent legal advice led to the purchase of a commercial property that was later foreclosed on, and ultimately caused them roughly $3 million in damages.
The jury rejected the arguments of the Basnight’s attorney, Andrew Seiden of Seiden, Alder & Matthewman P.A., after only 45-minutes of deliberations, according to the Sarasota Herald Tribune.
Wiliams Parker attorneys John Moore and Terri Costa were represented by Phelps Dunbar partners Jessica Alley and Larry Ingram.
In Dade County Courthouse’s first Engle progeny trial of the year, jurors heard opening statements in the Larkin v. RJ Reynolds trial in front of Judge Valerie Manno-Schurr. By the end of the first day, a theme developed in the courtroom around the nature of choices, made both by individuals who smoke cigarettes, and the companies that manufacture them.
SEBRING, FL – The first major tobacco lawsuit of 2012 ended yesterday with RJ Reynolds (NYSE: RAI) and Philip Morris (NYSE: PM) being ordered to pay a combined $2.5 million in damages to a deceased smoker’s surviving husband.
The trial was halted last October by the Nevada Supreme Court, while they considered a motion from the defendants for a change of venue, which claimed pre-trial publicity from large verdicts in previous related cases would prevent the selection of an impartial jury in Clark County. The Supreme Court issued an opinion denying the motion last December, and trial proceedings resumed earlier this month. Read the the court’s decision 
Sarasota, Florida – A six-member jury found in favor of Sarasota’s oldest law firm last week in a legal malpractice lawsuit with potentially millions of dollar stake.