January 31, 2005

Supplement to the Los Angeles Daily Journaland San Francisco Daily Journal

Trials, transactionsand the insider’s guideto the practice of law.

Pharmaceutical giant Merck & Co. faces a mountain of lawsuitsclaiming that Vioxx, its popular anti-inflamatory drug, injuredand in some cases killed people. However, the news isn’t all badfor pharmaceutical companies, thanks to a string of defense winsposted by attorneys like Ellen Darling. PLUS: The Top DefenseVerdicts of 2004.

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The wrinkle-free defense workof three Southern California

attorneys last fall shot down alawsuit by Hollywood socialite IrenaMedavoy, who blamed the maker ofBotox and her celebrity doctor for alitany of health problems thatallegedly ailed her after receivinginjections of the popular beautytreatment.

In the first product liabilitylawsuit over the Allergan Inc.drug, defense lawyer HowardWeitzman says his team needed topoke holes through the testimonyof the wife of Hollywood moviemogul Mike Medavoy, whoclaimed Botox left her bed riddenfor months with unrelentingmigraine headaches.

“A large part of their casedepended on credibility,” saysWeitzman, a partner in the LosAngeles office of New York’sProskauer Rose who representedBeverly Hills dermatologist Dr.Arnold Klein in the case. “I thinkher cross examination caused thejury to have questions as to herability to recollect and the fact thatshe may have embellished some ofher symptoms.”

Weitzman, along with HootGibson and Ellen Darling of Snell& Wilmer’s Irvine office, convinceda Los Angeles Superior Court juryto clear Irvine-based Allergan andKlein of liability in the lawsuit in a9-3 decision. Medavoy v. Klein,SC075614 (L.A. Super. Ct., verdictOct. 8, 2004).

In 2002, Klein gave MedavoyBotox injections to treat hermigraine headaches, an “off-label”use of the drug not approved bythe federal Food and DrugAdministration. Though doctorscan 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 thecomplaints she was making that she now claimed were due to her Botox treatment,” saysHoot Gibson, center, co-counsel with Ellen Darling of Snell & Wilmer for Allergan. HowardWeitzman, right, of Proskauer Rose represented Dr. Arnold Klein.

are not approved by the FDA, thecomplaint alleges Klein failed towarn Medavoy of the drug’s sideeffects, and he gave her anunusually high dose.

But during cross-examination ofan internist and neurologist who alsotreated Medavoy, Weitzman says thedefense team was able to show thather other doctors had no scientificevidence to prove that Medavoy’salleged headaches, upper respiratoryproblems, weakness and hives werecaused by Botox.

“We were able to point out to thejury instances of prior complaintsthat paralleled the complaints she wasmaking that she now claimed weredue to her Botox treatment,” saysGibson, co-counsel with Darling forAllergan.

In addition to the product liabilityclaims made against Allergan,Medavoy accused the company ofviolating California Business andProfessions Code sections 17200and 17500, including falsely

advertising the off-label use ofBotox. But Los Angeles SuperiorCourt Judge Victor E. Chavezrefused to hear that phase of the trial,stating it should be left to the FDAto decide whether Allergan illegallypromoted non-FDA-approved usesof Botox.

Arthur Leeds, the PacificPalisades sole practitioner whohelped represent Medavoy, arguesthat California law allows superiorcourt judges to order companies tostop engaging in false advertisingpractices, and that the plaintiff wasnot asking the judge to determine“public policy.”

“We were not seeking to breaknew ground as the judge implied.We were totally shocked andsurprised by his decision,” saysLeeds.

Jeffrey Benice, the Costa Mesasole practitioner who also repre-sented Medavoy, says the court alsoerred by not allowing the plaintiff topresent a number of credible

witnesses willing to testify thatthey had reactions to Botox likeMedavoy’s, saying the witnesses’cases were not sufficiently similarto her claims.

The plaintiff’s case, Benice says,called for up to $200,000 in medicalexpenses and lost income forMedavoy and between $50 and$100 million dollars for stateBusiness and Professions Codeviolations. Medavoy appealed theverdict this month.

In addition, Benice says the judgedismissed a juror who was in favorof Medavoy and could have hungthe jury. According to Benice, thecourt stated the juror looked upwords in the dictionary and relatedhis personal experiences during jurydeliberations.

“We spoke in detail with the jurorwho was leading the pro-Medavoyviewpoint and he absolutelydisputed that he did anythinginappropriate 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 thecompany’s defense team led by William O’Hare.

First, the company removed Richter from itsboard of directors after Nasdaq officials informedTickets.com that the Securities and ExchangeCommission had disciplined Richter for failingto reveal he had been convicted of misdemeanorembezzlement charges in the 1970s and servedthree months in jail.

After he was removed from the Tickets.comboard, reportedly to head off investor worriesjust before the company’s initial public offeringin 1999, Richter then chafed under a six-month“lockout” period, which prevented him fromselling his shares.

By the time Richter could finally sell the stock,Tickets.com’s price had plummeted. So he suedthe company through his holding companies R4Holdings and Hill International for missing outon windfall stock profits Richter claimed couldhave reached $90 million if he were able to sellhis 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 Richterand his son David, both attorneys and formermembers of Tickets.com’s board of directors, andreturned a complete defense verdict.

“They were both experienced litigants andveterans at providing testimony. But we wereobviously successful at calling the plaintiffs’claims into question,” says O’Hare, a commerciallitigation partner at the Irvine office of Snell &Wilmer. “Maybe their experience worked againstthem in the eyes of the jury, where they lookedlike ‘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 maybelegitimately seemed like a bit of anunderdog,” says William O’Hare of Snell& Wilmer, who represented Tickets.comagainst a shareholder who claimed thecompany owed him $90 million.

months long, the litigation process had many highand low points. But he adds that one “eureka”moment stands out as the point where the tideturned in his clients’ favor, stemming frommeetings the board held to consider appointingnew board members.

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

rowdy children, and he described their faces ingreat detail.

“But there were a couple of problems with histestimony: First, this meeting took place viaconference call, as several of the company’smeetings at that time did. Also, Mr. Richter didn’teven take part in it through the phone,” O’Haresays.

O’Hare adds that after he exposed Richter as“remembering” events that the plaintiff could notprove took place, much less that he took part in,the jury swung toward the defendants.

“Even though we were sort of a corporatedefendant, Tickets.com maybe legitimatelyseemed like a bit of an underdog because they’retrying to compete in a space where they have tocontend with a near-monopoly,” O’Hare says,referring to industry titan TicketMaster. “Thecompany’s stock price has maybe not performedlike they would prefer, through no fault of thecompany’s.

“We tried to get the jury to commend them forsurviving in a business where nearly all the othercompetition has been wiped out.”

Lead plaintiffs’ attorney Peter Sheridandeclined to discuss specifics in how heapproached this case, citing a pending appeal.

“It’s a significant appeal on a broad range ofissues,” says Sheridan, a partner at Christensen,Miller, Fink, Jacobs, Glaser, Weil & Shapiro inLos Angeles. “It’s difficult to talk about how Iconducted myself or what I could have or shouldhave done, when I’m going to be visiting threedifferent [appellate] judges in the next six to eightmonths.”

Orange County Superior Court Judge CoreyCramin 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