Update (January 16, 2015): Everything is bigger in Texas. Texan Mikal Watts is one of the biggest plaintiffs’ lawyers in the United States (and not immune from suspicion of wrong-doing, incidentally). About five years ago, Minnesota Litigator followed his trial win in the Levaquin litigation for plaintiff, John Schedin (discussed below). They don’t really get bigger than Mikal Watts. AND NOW HE’S BACK IN TOWN…
He seems to have teamed up with an obscure Minneapolis lawyer named Lew Remele and other Minnesota lawyers in a case against Syngenta over Syngenta’s sale of corn with a “trait” that made the corn unsuited for sale in China. Mr. Remele is undoubtedly still licking his wounds after having won a mere $800 million in a case Western Digital this past year. Like any seasoned trial lawyer, one can be sure that these lawyers know it’s a numbers game. You win some, you lose some. And some win a lot…Stay tuned for more posts on this litigation….(or maybe not. It would appear that plaintiffs and defendants each want the case to be tried elsewhere) (and it is looking like Dorothy might be heading back to Kansas)…
(Original post, November 16, 2010): As promised, the first bell-wether Levaquin trial has begun with opening arguments on November 15 from plaintiff’s counsel, the widely known plaintiff’s lawyer, Mikal Watts, followed by defense counsel, John Dames from Drinker Biddle in Chicago and Tracy Van Steenburgh from Nilan Johnson Lewis before U.S. District Court Judge John R. Tunheim (D. Minn.) and a jury of 12 Minnesotans.
Judge Tunheim had granted plaintiff’s motion to amend his complaint to add a claim for punitive damages.
To hear Mikal Watts, the lawyer for John Schedin (the plaintiff) tell it, defendants Johnson & Johnson and defendant Ortho-McNeil, with full knowledge that their antibiotic, Levaquin, posed a risk of rupturing tendons, disclosed the risk of this excruciatingly painful potential side effect in tiny print on a fourteen-page package insert — perhaps the proverbial “too little too late” or, perhaps, an intentionally not-a-warning warning? All the while, defendant promoted Levaquin with zeal. It is now a “blockbuster” drug bringing in $1 billion/year.
Schedin, a senior for whom Levaquin might have an elevated risk, took Levaquin along with a steroid (which elevates the risk of tendonopathy) to treat bronchitis and, three days later, Watts will argue, Schedin’s left achilles tendon was ruptured (severed), and his right achilles tendon partially severed. (Watts did not say that the respiratory problem was not cured and it may be presumed that it was.)
Defense counsel highlighted in their openings that plaintiff had to acknowledge that (a) the very specific risk (tendon rupture for the aged taking corticosteroids) in fact was disclosed the time Schedin was prescribed Levaquin, (b) the duty to warn is a duty owed to the doctor, not the patient (“the learned intermediary doctrine”), (c) Schedin’s tendon problems could have had other causes, and (d) Levaquin is an extremely effective antibiotic with a potential risk of tendon damage, which indisputably would affect a very small percentage of users.
The case is clearly a close call. Predictions in such cases are not for the risk averse. That said, Watts’ presentation in opening statement held a slight edge over defense counsel’s performance — a tighter presentation, a better use of technology, and the advantage of going first. On balance, however, Minnesota Litigator thinks that the defense has the edge on this very high stakes litigation. Time will tell. The trial will continue over the next three weeks.
[Editor’s note: Plaintiff Schedin won (kind of).]