18494 Snell & Wilmer 4-1 (250) Leeds. Jeffrey Benice, the Costa Mesa sole practitioner who also repre-sented

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  • January 31, 2005

    Supplement to the Los Angeles Daily Journal and San Francisco Daily Journal

    Trials, transactions and the insider’s guide to the practice of law.

    Pharmaceutical giant Merck & Co. faces a mountain of lawsuits claiming that Vioxx, its popular anti-inflamatory drug, injured and in some cases killed people. However, the news isn’t all bad for pharmaceutical companies, thanks to a string of defense wins posted by attorneys like Ellen Darling. PLUS: The Top Defense Verdicts of 2004.

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  • The wrinkle-free defense workof three Southern California attorneys last fall shot down a lawsuit by Hollywood socialite Irena Medavoy, who blamed the maker of Botox and her celebrity doctor for a litany of health problems that allegedly ailed her after receiving injections of the popular beauty treatment.

    In the first product liability lawsuit over the Allergan Inc. drug, defense lawyer Howard Weitzman says his team needed to poke holes through the testimony of the wife of Hollywood movie mogul Mike Medavoy, who claimed Botox left her bed ridden for months with unrelenting migraine headaches.

    “A large part of their case depended on credibility,” says Weitzman, a partner in the Los Angeles office of New York’s Proskauer Rose who represented Beverly Hills dermatologist Dr. Arnold Klein in the case. “I think her cross examination caused the jury to have questions as to her ability to recollect and the fact that she may have embellished some of her symptoms.”

    Weitzman, along with Hoot Gibson and Ellen Darling of Snell & Wilmer’s Irvine office, convinced a Los Angeles Superior Court jury to clear Irvine-based Allergan and Klein of liability in the lawsuit in a 9-3 decision. Medavoy v. Klein, SC075614 (L.A. Super. Ct., verdict Oct. 8, 2004).

    In 2002, Klein gave Medavoy Botox injections to treat her migraine headaches, an “off-label” use of the drug not approved by the federal Food and Drug Administration. Though doctors can prescribe drugs in ways that

    Medavoy v. Klein

    TOP DEFENSE VERDICTS OF 2004

    “We were able to point out to the jury instances of prior complaints that paralleled the complaints she was making that she now claimed were due to her Botox treatment,” says Hoot Gibson, center, co-counsel with Ellen Darling of Snell & Wilmer for Allergan. Howard Weitzman, right, of Proskauer Rose represented Dr. Arnold Klein.

    are not approved by the FDA, the complaint alleges Klein failed to warn Medavoy of the drug’s side effects, and he gave her an unusually high dose.

    But during cross-examination of an internist and neurologist who also treated Medavoy, Weitzman says the defense team was able to show that her other doctors had no scientific evidence to prove that Medavoy’s alleged headaches, upper respiratory problems, weakness and hives were caused by Botox.

    “We were able to point out to the jury instances of prior complaints that paralleled the complaints she was making that she now claimed were due to her Botox treatment,” says Gibson, co-counsel with Darling for Allergan.

    In addition to the product liability claims made against Allergan, Medavoy accused the company of violating California Business and Professions Code sections 17200 and 17500, including falsely

    advertising the off-label use of Botox. But Los Angeles Superior Court Judge Victor E. Chavez refused to hear that phase of the trial, stating it should be left to the FDA to decide whether Allergan illegally promoted non-FDA-approved uses of Botox.

    Arthur Leeds, the Pacific Palisades sole practitioner who helped represent Medavoy, argues that California law allows superior court judges to order companies to stop engaging in false advertising practices, and that the plaintiff was not asking the judge to determine “public policy.”

    “We were not seeking to break new ground as the judge implied. We were totally shocked and surprised by his decision,” says Leeds.

    Jeffrey Benice, the Costa Mesa sole practitioner who also repre- sented Medavoy, says the court also erred by not allowing the plaintiff to present a number of credible

    witnesses willing to testify that they had reactions to Botox like Medavoy’s, saying the witnesses’ cases were not sufficiently similar to her claims.

    The plaintiff’s case, Benice says, called for up to $200,000 in medical expenses and lost income for Medavoy and between $50 and $100 million dollars for state Business and Professions Code violations. Medavoy appealed the verdict this month.

    In addition, Benice says the judge dismissed a juror who was in favor of Medavoy and could have hung the jury. According to Benice, the court stated the juror looked up words in the dictionary and related his personal experiences during jury deliberations.

    “We spoke in detail with the juror who was leading the pro-Medavoy viewpoint and he absolutely disputed that he did anything inappropriate at all,” Benice says.

    — Tina Spee

  • R4 Holdings v. General Atlantic Partners 46 LP

    I n his dealings with onetime Internet darlingTickets.com, plaintiff Irvin Richter has known mostly frustration — not least because of the company’s defense team led by William O’Hare.

    First, the company removed Richter from its board of directors after Nasdaq officials informed Tickets.com that the Securities and Exchange Commission had disciplined Richter for failing to reveal he had been convicted of misdemeanor embezzlement charges in the 1970s and served three months in jail.

    After he was removed from the Tickets.com board, reportedly to head off investor worries just before the company’s initial public offering in 1999, Richter then chafed under a six-month “lockout” period, which prevented him from selling his shares.

    By the time Richter could finally sell the stock, Tickets.com’s price had plummeted. So he sued the company through his holding companies R4 Holdings and Hill International for missing out on windfall stock profits Richter claimed could have reached $90 million if he were able to sell his stock during the lockout. R4 Holdings et al v. General Atlantic Partners 46 LP et al 02- CC06740 (Orange Super. Ct., appeal filed Sept. 2, 2004).

    But O’Hare says the jury didn’t believe Richter and his son David, both attorneys and former members of Tickets.com’s board of directors, and returned a complete defense verdict.

    “They were both experienced litigants and veterans at providing testimony. But we were obviously successful at calling the plaintiffs’ claims into question,” says O’Hare, a commercial litigation partner at the Irvine office of Snell & Wilmer. “Maybe their experience worked against them in the eyes of the jury, where they looked like ‘professional litigants.’”

    O’Hare says that since the trial ran three — Draeger Martinez

    “Even though we were sort of a corpo- rate defendant, Tickets.com maybe legitimately seemed like a bit of an underdog,” says William O’Hare of Snell & Wilmer, who represented Tickets.com against a shareholder who claimed the company owed him $90 million.

    months long, the litigation process had many high and low points. But he adds that one “eureka” moment stands out as the point where the tide turned in his clients’ favor, stemming from meetings the board held to consider appointing new board members.

    Irvin Richter “described a scene vividly where the other board members had been acting like

    rowdy children, and he described their faces in great detail.

    “But there were a couple of problems with his testimony: First, this meeting took place via conference call, as several of the company’s meetings at that time did. Also, Mr. Richter didn’t even take part in it through the phone,” O’Hare says.

    O’Hare adds that after he exposed Richter as “remembering” events that the plaintiff could not prove took place, much less that he took part in, the jury swung toward the defendants.

    “Even though we were sort of a corporate defendant, Tickets.com maybe legitimately seemed like a bit of an underdog because they’re trying to compete in a space where they have to contend with a near-monopoly,” O’Hare says, referring to industry titan TicketMaster. “The company’s stock price has maybe not performed like they would prefer, through no fault of the company’s.

    “We tried to get the jury to commend them for surviving in a business where nearly all the other competition has been wiped out.”

    Lead plaintiffs’ attorney Peter Sheridan declined to discuss specifics in how he approached this case, citing a pending appeal.

    “It’s a significant appeal on a broad range of issues,” says Sheridan, a partner at Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro in Los Angeles. “It’s difficult to talk about how I conducted myself or what I could have or should have done, when I’m going to be visiting three different [appellate] judges in the next six to eight months.”

    Orange County Superior Court Judge Corey Cramin presided over the jury trial.

    Reprinted with permission from the Daily Journal EXTRA. ©2005 Daily Journal Corporation. All rights reserved. Reprinted by Scoop ReprintSource 1-800-767-3263

    TOP DEFENSE VERDICTS OF 2004