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April 22, 2000

Lilly's legal strategy disarmed Prozac lawyers
Secret deals, hardball tactics limited drugmaker's liability for top-selling antidepressant.

By Jeff Swiatek
The Indianapolis Star

Saturday, April 22, 2000

Eli Lilly and Co. has all but staved off a product-liability crisis that could have crippled the company.

Just 5 1/2 years ago, the Indianapolis drugmaker faced a barrage of more than 150 U.S. lawsuits over its best-selling antidepressant, Prozac.

Today, fewer than 10 cases remain.

Even opposing attorneys give grudging respect to Lilly for defusing what one of its executives called "a deadly serious" threat to the company and its star drug.

"It's a stunning example of corporate management of litigation. It kind of came unfrayed a little bit, but it was largely successful," said Andy Vickery, a Houston trial lawyer who's pursued 14 Prozac lawsuits against Lilly.

In an era of spectacular judgments in product-liability cases, from cigarettes to breast implants, Lilly's success in limiting damage from Prozac claims is a corporate coup that's gone little-noticed.

"I think our legal department did a superb job. The dog that doesn't bite sometimes escapes attention," said Mitchell E. Daniels Jr., Lilly senior vice president for corporate strategy and policy.

Which isn't to say that the decadelong battle over Prozac in dozens of county and federal courts has been waged without controversy over tactics.

Critics charge Lilly became adept at lawsuit-quashing through aggressive and sometimes unethical legal tactics. They earned the rebuke of three courts, spurred at least three separate lawsuits and gave rise to charges of trial-fixing, conspiracy and document-hiding.

That's not the way Lilly sees it.

The company credits its courtroom defense of Prozac to a legal strategy that's been vigorous but fair, and says science also was on its side.

In the past five years, plaintiffs' attorneys have dropped lawsuits in droves as they realized medical evidence didn't support their claims that Prozac causes violent behavior and suicidal feelings, said Lilly's director of public relations, Edward A. West.

At the same time, Daniels notes, Lilly fought off trial attorneys who jumped into Prozac litigation like it was "a gold rush."

"Most of them hoped we would cut and run, pay them something. We didn't do that," he said.

What Lilly did do was combine hardball legal tactics with a classic carrot-and-stick legal strategy, according to a four-month Indianapolis Star review of court documents, plus interviews with lawyers and others.

The carrot: payouts by Lilly estimated to be over $50 million to quietly settle more than 30 of those Prozac lawsuits.

The stick: a policy of blaming patients for any violent acts they committed on Prozac, while working to get other lawsuits dismissed, dropped or bottled up in court.

Lilly's Prozac defense also benefited from divisions among opposing trial lawyers, who couldn't act in any concerted way, squabbled among themselves and even sued one another.

Some mistrust among plaintiffs' lawyers arose from the fact that two of the leading Prozac trial lawyers during most of the 1990s were members of the Church of Scientology, the sect that has waged a well-financed crusade against Prozac and other psychiatric drugs.

The story of Prozac litigation "would be a great movie. About intrigue and all kinds of stuff," said Richard Zitrin, who co-wrote a 1999 book on legal ethics, The Moral Compass of the American Lawyer.

Estimated $50 million a small price to pay

Controversial though Lilly's Prozac legal strategy has been, it's tough to fault the results.

Not only has Lilly managed to get most Prozac cases dropped or dismissed, it has won jury verdicts in the only two Prozac civil cases to come to trial.

As for the settlement payouts, by most measures they've come cheap. Lilly has never divulged how much money it has paid to plaintiffs and their lawyers, but the total runs over $50 million, according to court documents and other reliable evidence reviewed by The Indianapolis Star.

Compare that to potential product-liability claims that hung over Prozac in the mid-1990s of perhaps $500 million to $1 billion, said Bob Kirby, health care analyst for the Edward Jones investment firm of St. Louis.

Or perhaps much more.

American Home Products Corp. offered $3.75 billion last year to settle lawsuits over its fen-phen diet pills, which it yanked from the market in 1997 over health concerns.

The settlement payments by Lilly also pale in comparison to the revenue Prozac generates: some $7 million a day, or about 26 percent of total company sales last year.

Lilly's Daniels terms the settlement payments "relatively trivial."

"The cost of lost product sales was massively more . . . as patients were frightened away" from using Prozac by the negative publicity spawned by the lawsuits, he said.

Today, Prozac liability warrants only a brief mention in Lilly's latest annual report. The fine-print note reassures shareholders that "the company has accrued for its estimated exposure" to Prozac lawsuits.

Plaintiffs won't comment about their settlement

There's one other key part of Lilly's Prozac legal strategy: keeping quiet about it.

"They don't want the whole world to know they are paying out money on these," said Indianapolis attorney Vernon J. Petri, who settled a Prozac lawsuit in January that was especially touchy for Lilly.

The lawsuit was filed in 1998 by a former Lilly marketing assistant, Patricia M. Roberts, who helped sell Prozac. Roberts charged that after she took Prozac herself, she suffered from suicidal ideas, confusion and debilitating headaches. The problems drove her to seek psychiatric treatment at Methodist Hospital in Indianapolis.

"I just dared them to go to court on this one," Petri said. "She just knows too much."

Petri never got the chance.

Lilly settled with Roberts, and the court dismissed the case against Lilly four months ago.

"They were smart to settle this one," said Petri, who, like his client, won't comment on the terms.

For this story, Lilly officials opened up more than usual, after West initially said, "We're not going to go into those sort of things. We feel these are old issues."

West went on to say Lilly has settled Prozac lawsuits "always for business reasons and never because we thought the product was responsible."

Daniels said he didn't appreciate The Star writing about Prozac litigation, even if the outcome does favor Lilly.

"I'll grant you," he said, "it is a success story."

Texas case was favored by attorneys suing Lilly

It's a story that began with one of the most horrific of shooting sprees.

In 1989, Joseph Wesbecker walked into the Standard Gravure printing plant in Louisville, Ky., shot seven co-workers to death and wounded 12 others, and then turned the gun on himself.

A year later, Leonard Finz, a flamboyant ex-New York state judge, filed suit for 28 of Wesbecker's victims and their family members. The lawsuit blamed Lilly for the shootings because Wesbecker was taking Prozac when he carried out his rampage.

At the time, Prozac had been on the market only two years. Lawsuits such as Finz's began popping up all over the country, spurred by a few studies and much anecdotal evidence linking Prozac to violent acts or suicidal thoughts.

Lilly may have opened the door to the litigation by refusing to put an explicit warning on Prozac's U.S. label about the drug's alleged potential to cause violent behavior and suicidal feelings.

The trial lawyers thought they had the evidence and legal wherewithal to "take Lilly down," as Dallas trial lawyer Paul L. Smith candidly put it to one reporter.

Smith would later stand accused of doing just the opposite, with one lawsuit calling him "Lilly's puppet."

It was Smith who led the early charge against Lilly in 1992-93.

While Finz moved slowly on the Wesbecker case and finally withdrew altogether, Smith was winning pretrial motions against Lilly on a Prozac case in Texas.

"He was ahead of other lawyers as far as combat with Lilly was concerned," said Houston lawyer Vickery.

At the time, lawyers for plaintiffs and Lilly were plotting over which Prozac lawsuit to try to nudge to trial.

The strategy on first-to-trial was critical for each side. The first jury verdict in any multistate product-liability case often sets a precedent that influences all litigation to follow.

Lilly wanted a case in which factors other than Prozac seemed clearly at fault. Wesbecker fit the bill. The gun-loving pressman had been a troubled soul who'd bragged about workplace violence long before he took Prozac.

Trial lawyers, on the other hand, didn't like Wesbecker. They preferred Smith's case in Texas.

Smith had sued Lilly on behalf of the family of a man named Michael Biffle, who committed suicide six days after starting a prescription for Prozac. No other drugs were found in his body, and Biffle's doctor was ready to testify that he wasn't suicidal before taking Prozac.

In April 1993, Smith wrote to fellow Prozac trial lawyers, urging them to help him move Biffle to trial first and get Wesbecker delayed.

"That case is the weaker case," Smith wrote of Wesbecker. If tried first, he warned, "we are going to be hard pressed to prevail."

Other lawyers agreed.

"We were all pushing that case (Biffle)," said Los Angeles attorney Skip Murgatroyd. "Everything was going well in that case. Lilly was getting pounded."

Lawyer's lack of candor helps to sow distrust

No one who's talking publicly knows what happened in the summer of 1993 between Smith and Lilly. But this much is certain:

By September 1993, Smith was no longer "pounding" Lilly in the Biffle case. He'd settled it, just five months after plugging Biffle as the ideal lead-off case against Lilly.

The Biffle case, plus another that Smith had in the same court, were likely the first significant settlements by Lilly of Prozac lawsuits, said Houston attorney Richard W. Ewing, who has tracked Prozac litigation for nine years.

It's also clear that Lilly and Smith took pains to make sure outsiders didn't find out about the settlements.

The two sides got the Texas judge to agree to keep the two cases on his docket for 16 months after they were settled, instead of dismissing them within weeks or a few months as is normal.

The effect was significant. It made it seem like Smith and Lilly still had a "live controversy" in what actually were settled cases, said Vickery. And it hid Lilly's willingness to settle Prozac cases from dozens of other attorneys anxious to have Lilly ante up in their cases.

Vickery, who's still pursuing Smith for breach of fiduciary duty and other charges on behalf of a Prozac plaintiff, estimated in a court document that Smith received more than $2 million in fees in the two 1993 settlements with Lilly.

Murgatroyd said he and other trial lawyers don't fault Smith for settling lawsuits for his clients but felt betrayed because he didn't clue them in.

Murgatroyd recalled asking Smith if he'd settled Biffle, sometime after September 1993.

"He told me point-blank he did not," Murgatroyd said. "If Paul had said, 'Well, Skip, I just can't discuss that case,' that would have allowed me to know what was going on."

Smith, now in his mid-50s, is retired or semiretired from law practice, living as a wealthy man in Dallas, say people who know him. He did not respond to requests for an interview.

The Scientology issue also seemed to create mistrust among trial lawyers. Murgatroyd is a Scientologist, as was his partner at the same Los Angeles firm, the late William Downey III, who handled early Prozac lawsuits.

Chicago attorney Nancy Zettler remembered Downey trying to tape-record a meeting of Prozac trial lawyers in the early 1990s. Other attorneys, knowing of Downey's Scientology connection, told him to switch off the recorder, she said.

Murgatroyd, who's less active in Prozac cases today, denies any direct link between the litigation and Scientology.

"The church never called me and asked, 'Skip, how are your cases going?' I'm not aware of any involvement the church had in any of the litigation."

Lead counsel fills void in Wesbecker case

Lilly's early secret settlements of Prozac lawsuits kept plaintiffs' attorneys in the dark and off-balance. Their position would soon get worse.

Late in 1993, Smith was named lead counsel for the 75 federal Prozac lawsuits that were consolidated in Indianapolis in the court of U.S. District Judge S. Hugh Dillin. Smith's leading role in Prozac litigation earned him the support of fellow trial lawyers for the job.

Essentially, that put Smith in charge of most Prozac trial discovery in the nation. The work included subpoenaing Lilly to get it to release internal documents and taking depositions from company scientists and others.

Meanwhile, the Wesbecker case was moving toward a March 1994 trial date in a Louisville courtroom. A month before trial, however, the veteran Chicago lawyer who'd taken over the case, Leonard Ring, died of heart failure.

Ring left behind a knowledgeable associate, Zettler. But she was only two years out of law school, unable to try a case of such import.

The natural choice to step into the void was Smith.

He agreed to go for it.

The man who had a secret working relationship with Lilly was about to try the one Prozac case that he and other plaintiffs' attorneys didn't want to see go to trial first.

Drugmaker hedges bet in midst of jury trial

The legal maneuverings set the stage for one of the most controversial behind-the-scenes deals in a U.S. courtroom.

It became a cornerstone of Lilly's strategy to defend Prozac.

The deal came during the Wesbecker trial, which started in September 1994 after a six-month delay received by Smith.

It was a trial Lilly had to win, or risk costly settlements of dozens or even hundreds of other Prozac lawsuits.

Lilly spent enormous time and money in preparations. Its attorneys did nearly 400 depositions, or legal interviews. That amounted to "one of the most detailed files ever amassed on a spree killer," wrote British journalist John Cornwell, who covered the trial for the London Sunday Times Magazine and later turned it into a book.

What continues to reverberate from the Wesbecker trial, however, isn't the 11-week court fight, full of sensational testimony and evidence.

It's the deal to essentially buy off the plaintiffs with a huge cash payment, secretly negotiated even as the trial went on.

The deal was "arguably unprecedented in a Western court," wrote Cornwell.

Lilly "kind of raised the art of settling cases secretly to a new high, or low," said Zitrin, who teaches ethics at the University of San Francisco School of Law. "People's jaws drop open when they hear that story. It's an outrageous example of abusing what the (legal) system is supposed to be about."

Zitrin's book uses the secret deal, many details of which are now known, as a case study of unethical legal behavior.

Daniels calls the deal "a hedge" against a jury decision that could have absolved Lilly but also left the company partly liable for damages.

The deal, worked out during a stay in the trial in December 1994, was so secret that it wasn't put in writing until months later. Participants had to agree to not acknowledge its existence even to the trial judge, John Potter of Jefferson County Circuit Court.

Jury never gets to hear of deaths from Oraflex

Zitrin views the deal as an attempt by Lilly to "create a situation where the trial was fixed." The deal required Smith to withhold key negative evidence about Lilly from the jury in the end stage of the trial.

The evidence concerned Lilly's 1985 guilty plea to 25 criminal counts for failing to tell the U.S. Food and Drug Administration about deaths and illnesses of patients taking a Lilly arthritis drug called Oraflex, plus related charges.

The deal also required a bit more:

Smith and his clients weren't to seek punitive damages or to appeal if Lilly won. And if the jury failed to return a verdict, the deal was off.

After the delay, the two sides went back to trial as if nothing had happened.

They quickly wrapped up their arguments and, after five hours of deliberations, the jury voted 9-3 on Dec. 12 to acquit Lilly and its best-selling drug of fault in Wesbecker's slaughter.

Concluded the American Lawyer newspaper in a 1995 article: "Interviews with four jurors suggest that Lilly barely escaped with a victory -- and that the omission of the Oraflex evidence may have been key."

Later lawsuits have revealed details of the deal, but the amount of money that changed hands has never been divulged.

However, evidence obtained by The Star indicates Lilly paid more than $20 million to Wesbecker plaintiffs and their attorneys under the secret deal, along with about $5 million to the workers' compensation carrier. The money to plaintiffs was paid out over three years from 1995-1997.

Eye-popping though they were, the payments may have been a bargain, considering Lilly officials got just what they wanted: a jury acquittal in the first Prozac case to come to trial.

"Lilly made the verdict the centerpiece of a national publicity campaign, touting the safety of Prozac," said a 1997 ruling by the 7th U.S. Circuit Court of Appeals.

The gains were immediate for Lilly. Many pending Prozac cases disappeared, withdrawn by discouraged attorneys convinced they couldn't whip Lilly in court.

Within two years, the number of newly filed Prozac cases fell "almost to the point of nonexistence," Lilly's chief in-house Prozac attorney, James T. Burns, told an Oklahoma court later.

Daniels defends Lilly's conduct in the trial as "100 percent ethical," though he thinks the deal backfired on Lilly and was unneeded.

"I wish we had that one back. We were two days from a slam-dunk, unequivocal, thunderous victory," he said. "But the outside lawyers proposed (the deal) just out of prudence against a surprising outcome, so we could limit our exposure."

The deal was "distorted" by critics, he said.

Lilly went to the extent of giving the Jefferson County Circuit Court affidavits from four leading legal experts who defended the propriety of the deal.

One defender, former U.S. Attorney General Griffin B. Bell, said that even though Smith didn't present the Oraflex evidence in court, he properly used it on behalf of his clients to "leverage" the secret deal from Lilly.

Judge makes attempt to amend trial outcome

Proper or not, the secret deal provoked outrage.

First to object was Judge Potter, a Harvard-educated Louisville native who favored bow ties and homespun talk. On hearing rumors of the secret deal in the early spring of 1995, the judge ordered counsel from both sides to submit to questioning about the terms.

Potter said he needed to know if the official judgment for the Wesbecker trial, which ended with a jury's acquittal, should be amended to dismissed "as settled."

Such a change, of course, wouldn't allow Lilly to boast publicly about a jury verdict in its favor for Prozac.

Lilly would have none of it. In the spring of 1995, Lilly and Smith, now suddenly allies, filed an objection to block the judge from inquiring into their deal. The case went all the way to the Kentucky Supreme Court, which in 1996 found lawyers for Lilly and plaintiffs showed "a serious lack of candor with the trial court and there may have been deception, bad faith conduct, abuse of the judicial process or perhaps even fraud."

Potter could go ahead with his hearing, the Supreme Court ruled.

But it wasn't to be.

Faced with fully disclosing the deal, Lilly officials had a change of heart. They agreed in 1997 that Potter could change the official judgment in the case to dismissed "as settled."

That made the hearing unnecessary and ended the dispute, ruled Kentucky Judge Edwin Schroering, who replaced Potter when he stepped aside. Schroering's January 1998 ruling said Lilly and other parties to the secret deal did "nothing improper."

By then, losing the dispute over wording may hardly have mattered for Lilly.

The drugmaker already had squeezed most of the public relations value out of the 1994 jury verdict, and Prozac lawsuits were on the wane.

Potter, who's still a judge in the same court, later filed an ethics complaint against Smith with the Kentucky Bar Association. The association took no disciplinary action against Smith, a spokeswoman said.

Potter remains irked about Lilly's secret deal.

"Even if you did it squeaky clean . . . it's still awful because it was trying to turn the trial into a spin doctor contest."

Conflict charges leveled in handling of cases

Lilly and Smith found themselves ensnared in an ever-more-tangled legal web as word leaked out about the secret deal.

Bound by the strict secrecy provision in the deal -- those who as much as revealed its existence would lose their settlement money -- Smith had to pretend he had lost the trial and won no settlement.

That required equivocating with people who claimed they were entitled to a share of any settlement money. They included one of his law associates and the estate of Ring, who'd worked on the Wesbecker case up to his death.

Smith also faced conflict-of-interest charges by continuing as lead counsel in the consolidated federal lawsuits against Prozac. Smith didn't step down from that post until July 1995.

Those charges took on more weight when it later came out that, even as Smith went head-to-head with Lilly during the Wesbecker trial, he negotiated to settle the 14 or so other Prozac lawsuits he had against Lilly.

At least two lawsuits filed against Smith accused him of breaking his fiduciary duties to plaintiffs in the federal cases by not revealing his deal-making with Lilly.

"Lilly . . . bought the loyalty, silence and cooperation of the chief spokesman/lawyer for the Prozac plaintiffs across the country," said a still-pending lawsuit filed by Vickery against Smith and Lilly.

Smith "was on a very short leash and . . . Lilly held the other end," Vickery wrote in the lawsuit, filed by the family of a Texas rancher who shot himself while on Prozac.

Moreover, having agreed to settle all of his other Prozac cases, Smith had little personal incentive to do any work as lead counsel for the dozens of other attorneys' federal cases, Vickery noted.

Smith grilled by lawyer in suit over settlements

The amount Lilly paid Smith to collectively settle his other cases hasn't been divulged.

However, in a contentious deposition last year in a Dallas lawsuit, Smith was grilled by an opposing attorney who asked at least seven times about a Lilly offer of $25 million to settle Smith's 14 other lawsuits, not including Wesbecker. Only parts of the confidential deposition transcript are available in court files; but in his answers, Smith doesn't call the $25 million figure inaccurate.

The Dallas lawsuit was filed in 1996 against Smith by his former law associate, Kimberly A. Stovall. She charged he didn't pay her the share of Prozac settlement money she was owed from Wesbecker and other cases.

Stovall finally settled her long-running suit with Smith and Lilly last October. Neither she nor her Houston attorneys would comment on the terms.

One document in the case reveals without question the large sums of money at stake. Stovall got Smith to belatedly pay her $119,379.81 in 1997. That apparently is her 2 percent to 5 percent share, plus interest, in the two Prozac Texas cases Smith settled in 1993. Smith's letter to Stovall detailing the payment doesn't say where the money came from.

Smith argued in the lawsuit that he didn't owe Stovall money from later settlements, including the Wesbecker case, because he fired her in January 1995 before money from those settlements came in.

Zettler, who worked with Smith for about a year, defends Smith's actions in the Prozac cases, calling him "one of the most honorable people I know."

She accuses other plaintiffs' attorneys of turning on Smith because "they got caught with their pants down" when Smith withdrew as lead Prozac attorney in 1995.

"They hadn't done jack on any of their cases. And Lilly people knew they didn't know jack about their cases. To cover their a - - - - with their clients, they had to get p - - - - - off at Paul," said Zettler, who still has one Prozac case left, involving a man who leaped off a Chicago office building.

As for charges by Vickery and others that Smith sold out to Lilly and left fellow lawyers and their clients in the lurch, Zettler doesn't buy it. "He (Vickery) is worse than Oliver Stone," she said. "He's just trying to construct something out of this which wasn't there."

If not for Smith pushing his Prozac lawsuits and taking over the Wesbecker case, "there would be nothing as far Prozac litigation goes. He carried the ball," Zettler said.

Smith himself told Judge Dillin, during a tense hearing the day he resigned as lead counsel for the federal cases, that he was disgusted with his colleagues.

"These guys have stood here and let me invest my life, risk my law practice, risk my family and risk my health to pursue this litigation . . . which none of them would touch. And they come up here and start harping at me."

Smith never requested repayment for his work as lead counsel on the federal cases.

With his fees from the secret settlements with Lilly running into the millions of dollars, say other trial attorneys, he hardly needed to.

Court sanctions Lilly for leak of testimony

The legal entanglements tightened as Lilly strove to keep its settlements secret and plaintiffs' attorneys sued for disclosure and a share of the Lilly loot.

Lilly had brought new counsel on board: the Kansas City law firm of Shook, Hardy & Bacon, perhaps best known for representing tobacco companies in their product-liability fights.

Shook, Hardy specializes in "managing" complex litigation, and Prozac lawsuits certainly provided fodder to work with.

In early 1997, lawsuits turned up evidence that the Wesbecker deal required Smith to return to Lilly 28 boxes of Prozac documents from the Wesbecker trial.

Under terms agreed to by Lilly, most documents in the Wesbecker case were to be shared with attorneys in the consolidated federal cases. That saved both sides time, so separate discovery wouldn't be needed in dozens of cases. Documents in the federal Prozac repository were stored in Chicago, first in the garage and basement of Zettler's house and later in a warehouse.

Smith returned the 28 boxes of documents to Lilly in the summer of 1995, but Lilly didn't put them in the federal repository until about 11/2 years later, Lilly attorney Burns admitted in an Oklahoma Prozac lawsuit.

That left a long period of time during which those thousands of pages of Prozac documents were unavailable for plaintiffs' attorneys to use.

In a convoluted explanation of what happened, which had even the judge confused, Burns said the 28 boxes of documents were among those Lilly wasn't required to put into the federal repository.

Nonetheless, he said, Lilly decided to ship them there in November 1996, "when this whole thing became an issue. Out of an abundance of caution we said, 'We are sending them back.' "

No sanctions were imposed on Lilly for that.

But Lilly was sanctioned in 1997 by U.S. District Judge Michael Burrage of the Northern District of Oklahoma for violating a court order in the same Prozac case, brought by Vickery.

The judge ruled Lilly "willfully violated" an order not to disclose pretrial testimony by its own attorney, Burns.

As a sanction, the judge unsealed the transcript, in which Burns revealed some details of the secret deal in the Wesbecker trial.

In a withering brief, Vickery described Lilly's attorneys using fax and overnight mail to send the confidential transcript at "mach speed" to Paul Smith, who wasn't entitled to see it because he wasn't part of the lawsuit.

Vickery charged that Burns leaked his own sworn testimony because he wanted to let Smith "sneak a peak" at what Burns had to say about the secret deal. Smith was being interviewed by a Kentucky court investigator on the same matter and Burns wanted the two men to get their stories straight, Vickery said.

Lilly counsel Andrew See, a partner at the Shook, Hardy firm, told the judge that sending the document was "a mistake."

Lilly later settled the Oklahoma case out of court.

Hawaii case is heard after plaintiffs won't settle

In the late 1990s, Lilly ran up against a Prozac plaintiff who wouldn't settle.

It came in another case of appalling killings by a Prozac user.

In 1993, Hawaii retiree William Forsyth Sr. stabbed his wife, June, and then himself to death in their home.

The Forsyths' children, Susan and William Forsyth Jr., sued Lilly in 1995, making the familiar charge that Prozac had turned their father over an 11-day time span from a mild-mannered retiree into a murderer.

What was unusual was the Forsyths' refusal to accept a settlement from Lilly, though one certainly was dangled before them, said William Forsyth Jr., a Hawaii Realtor.

"They have a lot of money, let's put it that way," Forsyth said, when asked how much Lilly offered him and his sister to drop their lawsuit.

The Forsyths, who are financially well-off, didn't need settlement cash and didn't want it, he said.

"We couldn't take money for that. I couldn't sleep at night," said Forsyth. "We just felt God would honor us if we hung in there."

The Forsyths wanted to use the lawsuit as a way to go public about what they saw as Prozac's potential to turn some people violent. Forsyth even flew to Indianapolis and put fliers about his concerns on the windshields of cars of Lilly employees.

Surprisingly, he said, Lilly attorneys seemed to take seriously the Forsyths' demand that the company warn doctors and patients about what Forsyth called "the dark side" of Prozac, in return for the Forsyths walking away from their suit.

Negotiations went on for more than a year, Forsyth said.

But then the talks faltered, and Forsyth now believes Lilly officials had no intention of ever agreeing to issue any sort of warning that Prozac could cause suicidal thoughts or violent acts.

"I feel they were totally leading us on. I think it was tactical," he said.

The case went to trial in Hawaii on March 3 last year, with at least one eerie similarity to the Wesbecker trial.

The lead attorney for the Forsyths, William Downey, was felled by cancer and couldn't try the case. He died a few months later. Vickery, an experienced trial attorney, took Downey's place.

Vickery recycled much evidence from the Wesbecker case, with new twists. His two expert witnesses included a British psychiatrist, Dr. David Healy, who believes Lilly has failed to warn doctors and the public of what he sees as Prozac's potentially devastating side effects for some users.

Lilly wheeled out its own expert witnesses, as well as a female "Lilly representative," who sat alongside Lilly's lawyers for the whole trial but never spoke up. Murgatroyd, who assisted Vickery, called the woman a "showpiece Polynesian" with "a great smile" who was apparently strategically placed for display in the Hawaiian courtroom.

This time, there was no secret deal. And Oraflex never came up. Vickery decided not to tell the jury about Lilly's 14-year-old criminal guilt for the withdrawn drug because it could create an appealable issue, in effect tossing "a skunk in the jury box," he said. On April 7, the verdict came down: The jury acquitted Lilly 11-0.

Lilly steadfastly refuses to include warning label

Where does that leave Prozac litigation?

Some trial attorneys think Lilly will go on as before, trying to string out in court the smattering of remaining cases and any new ones, and settling the ticklish cases before they reach trial.

"Eventually someone is going to win one. If I were Lilly, I'd get rid of the rest of the cases," Zettler said.

Murgatroyd is surprised that after a decade of litigation, Lilly still hasn't put an explicit warning on Prozac's label about suicidal thoughts and violent behavior.

"I think it (litigation) is just going to continue until Lilly gets smart and makes proper warnings. People are still killing themselves. It blows my mind they keep paying out in death claims when all they have to do is adequately warn."

Healy, the British psychiatrist, predicts an increase in Prozac lawsuits because in his view, the medical evidence is growing that Prozac can cause violent compulsions in some patients.

"I think the evidence base has gotten a lot stronger now. I think it will be easier now to make a case" that Prozac can harm, said Healy, who said he may agree to be a witness for other Prozac plaintiffs.

Daniels disagrees.

He said "mountains" of medical studies that testify to Prozac's safety have now become "Himalayas."

"There's no reason to expect" Prozac lawsuits will increase, he said.

And as for Lilly putting an explicit warning about suicide and violence on Prozac's package label, there's "no way," Daniels said. "It'd be inaccurate and it'd be misunderstood."

Even so, the stakes are now decidedly lower for Lilly,

Prozac's marketing life nears an end with the expiration of the principal U.S. patent in 2003. As generic versions of the drug come on the market, the drug's importance to Lilly will wane.

The course of litigation over the world's most popular antidepressant may well be decided in Hawaii.

Vickery has appealed the Forsyth verdict in U.S. District Court in Hawaii. Among grounds for the appeal: lack of juror unanimity. One juror told Vickery she "caved in" to "considerable pressure" from other jurors to acquit Lilly and that "unpressured, (it) would have been my vote to find in favor of the Forsyths."

Vickery also has filed a new lawsuit in Hawaii.

It's on behalf of the parents of a boy named Hugh Blowers, a depressed 17-year-old who hung himself in a bedroom at home last year after taking Prozac for a week.

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