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By Jenna Greene
August 14, 2015
There’s nothing like a devastating cross-examination to clinch a victory in court. Covington & Burling partners Phyllis Jones and Paul Schmidt delivered doozies for Eli Lilly & Co. in Los Angeles federal court last week, cutting short a bellwether trial over the antidepressant Cymbalta with a directed verdict.
The win follows an Aug. 7 victory for Covington lawyers in another expedited Cymbalta trial. Lilly faces dozens of lawsuits for allegedly failing to adequately warn of the risks of withdrawing from the drug, which is also used to treat fibromyalgia and chronic pain.
The stakes are high. According to Reuters, Cymbalta before its patent expired had $3.9 billion in sales in 2013. In the first half of 2015, sales were $561 million.
So how did the Covington team deliver? A close look at more than 100 pages of court transcripts shows that the defense on cross-examination exploited holes in plaintiff Erin Hexum’s case. On Aug. 13, the defense persuaded U.S. District Judge Stephen Wilson to dismiss the jury and call the whole thing off.
Consider how Jones, a 2005 Yale Law School grad, questioned Hexum.
It wasn’t that she had one “gotcha” moment. Rather, the key was her relentless (but always courteous) probing and absolute command of the deposition testimony.
Hexum testified that after she stopped taking Cymbalta, she suffered from a long list of terrible side effects. “I felt like I was crazy. I didn’t know if I was going to die,” she said under questioning from her attorney, Nicole Maldonado of Baum, Heldlund, Aristei & Goldman. “I was really scared.
I was still having jerks and brain zaps and that kind of stuff, so physically all those symptoms were there, but just—I specifically at this appointment remember feeling mentally and physically just defeated and crushed and completely confused and pretty sad.”
When it was Jones’ turn, she was careful not to come across as a bully. She introduced herself. “Ms. Hexum, my name is Phyllis Jones. We met at your deposition, as you may recall.”
She used personal details from prior testimony to elicit the response she was looking for, asking Hexum, “I think your husband described you as a reader?”
“Correct? And that would have been your practice to read the labeling for any medicine you were taking, correct?”
“And you read the label for Cymbalta? You read the whole thing?” “Yeah, I think so. It was very long.”
Jones continued, “And you also remember that the label told you that if you experienced intolerable symptoms, that you might need to go back up on your dosage?”
Piece by piece, she established that Hexum (who had earlier referred to Cymbalta as “poison”) consciously chose not to go back on the drug, declining to taper off her dosage more gradually to blunt the withdrawal symptoms.
The biggest blows came when Schmidt cross-examined the doctor who prescribed the medicine, Sean Wollaston. In a damaging admission, Wollaston said if he was doing it all over, he would have done the same thing.
“In light of the other possible treatment options, would you have made the same decision to prescribe Cymbalta to Ms. Hexum?” Schmidt asked.
Wollaston answered, “I would.”
The plaintiff’s case got worse when the doctor admitted he had no memory of reading the Cymbalta label, which warned of the risk of discontinuation and recommended tapering off the dosage.
“You don’t typically read the package inserts for the drugs that you prescribe, correct?” Schmidt asked.
“I don’t read the package inserts cover to cover, certainly,” Wollaston said.
“Do you have a specific recollection of ever reviewing a package insert for Cymbalta?”
“I don’t have a specific recollection on that, no.”
It was enough ammunition to ask for a directed verdict. Covington partner Michael Imbroscio argued to the judge that the plaintiffs couldn’t meet the threshold to establish liability—that Wollaston would not have prescribed the medicine if Lilly had a clearer warning label.
“That label could have said, ‘Nikki—Erin Nicole Hexum—will suffer horrible consequences if you give this drug to her,’ and he didn’t read it, so it didn’t make a lick of difference,” Imbroscio said.
Schmidt added that Hexum “knew that she might have to go back to her prior dose if the tapering wasn’t working. She knew that the day she
started the medicine from reading the label … she should have taken action, and there’s no evidence in the record that she took action with a medical professional.”
The judge bought it. Wilson hasn’t issued a written decision, but his comments to Hexum’s attorney, Terence Leckman of Pogust Braslow & Millrood, give a sense of his rationale.
He said, “There’s an absence of evidence that even if the label should have read as the plaintiff argues it should, that given the testimony of Wollaston and the plaintiff, it wouldn’t have made a difference.”
Contact Jenna Greene at email@example.com; on Twitter @jgreenejenna.