Law360, New York (January 01, 2010) -- Law360's top product liability plaintiffs firms of 2009 garnered substantial verdicts against pharmaceutical heavyweights such as Pfizer Inc. and Novartis Pharmaceutical Corp. and chipped away at Big Tobacco from new angles, racking up hundreds of millions of dollars in damages.

Law360's product liability plaintiffs firms of the year — Kellogg Huber Hansen Todd Evans & Figel PLLC, Pogust Braslow & Millrood LLC, Littlepage Booth, Kelley/Uustal Law Firm, Valad & Vecchione PLLC, Trieweiler Law Firm, Levin Papantonio Thomas Mitchell Echsner & Proctor PA, Paige Trop & Ameen PA and The Alvarez Law Firm — represented plaintiffs in forums from the U.S. Supreme Court to local courts.

They set the stage in several bellwether trials and took in multimillion-dollar verdicts for clients who suffered injuries from cigarette smoking, as well as from pharmaceutical drugs designated for the treatment of bone cancer, menopause and allergies.

Kellogg Huber Hansen Todd Evans & Figel PLLC

Kellogg Huber earned its spot in Law360's top firms for representing the plaintiff in the landmark preemption case Wyeth v. Levine. The firm began preparing arguments for the suit fresh off a U.S. Supreme Court win in December 2008 in Altria Group v. Good, in which the high court held that that smokers may use state deceptive practices laws to sue cigarette manufacturers over the marketing of "light" cigarettes.

In the much-anticipated Wyeth decision, released in April, the high court rejected the pharmaceutical company's argument that state law claims were preempted by federal law because it was impossible for Wyeth Pharmaceutical Inc. — now a subsidiary of Pfizer — to comply with both.

Professional musician Diana Levine filed her case in 2000, after being given an IV push injection of the Wyeth anti-nausea and allergy drug Phenergan when she went to the hospital for a headache.

She developed gangrene because of the injection and had to have part of her right arm amputated. Her suit said the drug's labeling should have forbidden the quicker-acting IV push injections of Phenergan because of the risk of injury.

In October 2006, the Vermont Supreme Court upheld an almost $7 million judgment for Levine. Wyeth appealed to the high court and found the Bush administration on its side. The question for the high court was whether federal law preempted Levine's claim that Phenergan's label did not contain an adequate warning about using the IV push method of administration.

In a 6-3 ruling, the Supreme Court said Wyeth's argument that being required to comply with a state law duty to provide a stronger warning would interfere with Congress' purpose of entrusting the U.S. Food and Drug Administration with labeling decisions was meritless. Kellogg Huber attorney David Frederick, who argued the case before the Supreme Court, said the ruling offered emotional vindication for Levine, but also would give her financial help for adapting to her injuries.

"I was very excited for Diana Levine because I knew that the decision would have a very real impact on her life," Frederick said. "My first thought was really about how happy I was for her. The monetary judgment has enabled her to fix things in her house to make it easier to use as a one-armed person, helping her to take care of herself and future needs."

"It was also an enormous boost for her emotionally to be able to have faith in the legal system," he added.

The ruling may serve as a warning to the pharmaceutical industry that the tides are turning for plaintiffs.

"I hope the signal is for [pharmaceutical companies] to be even more careful with their drugs and the warnings that they give on drugs and not to be so profit-conscious that they lose sight of important safety needs of their patients," Frederick said.

Public Citizen Litigation Group and Vermont-based Rubin Kidney Myer & DeWolfe worked with Kellogg Huber on the case.

Pogust Braslow & Millrood LLC and Littlepage Booth

Pogust Braslow and Littlepage land a spot on Law360's list of top product liability plaintiffs firms for their equal roles in attaining million-dollar verdicts for women alleging that Pfizer's popular menopause drugs Prempro and Prover caused them to develop breast cancer.

In November, the firms worked together to bring home verdicts totaling $34.3 million for 66-year-old plaintiff Donna Kendall and $78.75 million for bellwether plaintiff Connie Barton, 64, who had alleged that taking Prempro for years caused them to develop breast cancer.

The plaintiffs claimed that Wyeth and other drug company defendants, through a decadeslong marketing campaign, convinced doctors and the public that menopause was a chronic disease — as opposed to a natural aging process — that required hormone drug treatment.

"I think we did a very effective job in explaining to the jury how these drugs work and how they hurt people," Pogust Braslow attorney Tobias Millrood said. "You don't fool with Mother Nature — a woman's body is intended to progress throughout her course of life."

Both verdicts came from the Philadelphia County Court of Common Pleas, and Kendall's award — $28 million in punitive damages and $6.3 million in compensatory damages — was the largest compensatory damages award in the history of that court. The cases are but two of the roughly 1,500 Prempro lawsuits pending in Philadelphia.

Millrood said the plaintiffs urged jurors to make the pharmaceutical companies take responsibility for their actions.

"[I said], ‘No one has been able to tell this company to stop what it's doing, so you as members of the jury have the ability to do that,'" Millrood said. "I think that those were strong themes, and they correlated with everyone. Both of these companies completely turned a blind eye to what would happen if women took these drugs for the long periods of time they are supposed to take them for."

Millrood and Zoe Littlepage of Littlepage Booth said evidence and testimony from Pfizer executives on its studies — or alleged lack thereof — of the long-term effects of the hormone replacement therapies weighed heavily on jurors.

"I think the verdicts suggest that when jurors get to see the actual evidence of what these companies did, they will consistently return very high punitive damages awards," Littlepage said.

Kelley/Uustal Law Firm

Kelley/Uustal grabs a spot on our list for helping 61-year-old ex-smoker Lucinda Naugle win $300 million in damages in her case against Philip Morris USA Inc.

In November, a jury in the Seventeenth Judicial Circuit of Florida in Broward County found that the tobacco giant was legally responsible for Naugle's emphysema and awarded her $56 million in compensatory damages and $244 million in punitive damages.

Naugle's case is one of the thousands of Engle cases, individual actions that emerged when the Florida Supreme Court overturned a $145 billion verdict and decertified the class in Engle v. R.J. Reynolds Tobacco Co. in 2006.

Naugle, who began smoking in 1968 and quit in 1993 with the advent of the nicotine patch, filed suit against the tobacco giant in December 2007. She said she never would have begun smoking if she had known nicotine was highly addictive and that cigarettes were considered by Philip Morris to be a "drug delivery device," her attorneys said.

"We were not surprised by the verdict," said attorney Bob Kelley of Kelley/Uustal. "The jury did what we believe was the correct thing after they heard all of the evidence."

The suit contended that Philip Morris concealed evidence of the health problems associated with smoking and of the severity of nicotine's addictive properties, which make it incredibly difficult for most smokers to quit.

"She tried to quit on multiple occasions and could not quit until 1993 when the nicotine patch came out," Kelley said.

Naugle also admitted her own responsibility for smoking, a fact that resonated with jurors.

"Cindy is a very honest, hardworking woman," Kelley said. "[She] admitted her fault to the jury. But Philip Morris refused to accept any responsibility for her emphysema, even though she was an addicted customer for 25 years."

Valad & Vecchione PLLC and Trieweiler Law Firm

Valad & Vecchione and Trieweiler grab a place on our list of top product liability plaintiffs firms of 2009 for securing a $3.2 million verdict for Peggy Stevens, 57, who alleged she developed osteonecrosis of the jaw after taking Novartis' bone cancer drug Zometa for three years.

A jury in the Missoula County District Court of Montana handed down its verdict in favor of Stevens in October, after five days and eight hours of deliberations. The case was the first of about 550 cases over Novartis' Zometa and Aredia to go to trial.

"Our approach is to leave no stone unturned," Bart Valad of Valad & Vecchione said. "We are going to do whatever it takes to vindicate our client's rights under the law. The cases are quite strong in the sense that the evidence is there that Zometa caused this problem and that Novartis failed to warn the medical community about its effects."

The jury's verdict in the Stevens decision may be an indicator for how mass tort cases filed in New Jersey and federal cases consolidated into multidistrict litigation in the U.S. District Court for the Middle District of Tennessee will play out.

"This was a test run for the MDL because Novartis brought all of its big guns and put its cases forward in a jurisdiction not known for big verdicts," Valad said.

The verdict came two months after the judge overseeing the federal MDL shot down two of Novartis' key summary judgment bids.

Chief Judge Todd J. Campbell on Aug. 14 rejected Novartis' arguments that it did provide adequate warnings about its bone drugs and that the plaintiffs' general-causation experts should be excluded.

Valad & Vecchione said it had at least four to six more Zometa cases set to go to trial in 2010 and was also working with plaintiffs in the MDL.

Terry Trieweiler of Trieweiler Law Firm argued the Stevens case with Valad & Vecchione.

Levin Papantonio Thomas Mitchell Echsner & Proctor PA

Law360 recognizes Levin Papantonio for steering a Florida jury to order R.J. Reynolds Tobacco Co. to hand over $30 million to a Florida widow whose husband died of lung cancer in 1995.

A six-member jury in the First Judicial Circuit of Florida in Escambia County handed Levin Papantonio client Hilda Martin, the widow of Benny Martin, $5 million in compensatory damages and $25 million in punitive damages in June. This case was also a splinter from the Engle class action.

The jury found R.J. Reynolds 66 percent responsible for Benny Martin's lung cancer, while the deceased — who started smoking in the mid-1940s — was 34 percent responsible, attorneys for Martin said at the time of the verdict.

In ruling against R.J. Reynolds, the jury found that the company's conspiracy to conceal information about cigarettes was a legal cause of Benny Martin's death, the attorneys said. As in the Naugle verdict, lawyers for Martin amped up arguments that cigarette smoking was a bona fide addiction, a fact they say Big Tobacco attempted to hide from smokers.

"What we've pioneered here in Florida is that the only time you get that kind of compulsive use of cigarettes is when you have people who are addicted to the nicotine in cigarettes," Levin Papantonio attorney Robert Loehr said. "Other cases focus more on the bad conduct of tobacco companies."

For 50 years, he said, the tobacco industry has used a "free choice" defense, arguing that the smoker causes the disease.

"By using witnesses who have done extensive work in public health or with the surgeon general, we're able to show that it's not the case," Loehr said. "It really restrains their choice, just like any other type of addiction."

Paige Trop & Ameen PA and The Alvarez Law Firm

Netting $8 million in damages for a woman whose husband died of lung cancer after chain smoking for decades, Paige Trop & Ameen and The Alvarez Law Firm of Florida round out Law360's list of the top product liability plaintiffs firms of the year.

The firms jointly represent about 50 plaintiffs in suits against the tobacco industry and worked together to secure a victory for Elaine Hess on behalf of her deceased husband Stuart in the first trial arising from the disbanded Engle class action.

The verdict, issued in February by a jury in the Seventeenth Judicial Circuit of Florida, awarded Hess $3 million in compensatory damages and $5 million in punitive damages from Richmond, Va.-based Philip Morris.

"It was one of those cases that the whole world was watching," said Alex Alvarez of The Alvarez Law Firm. "Now, people understand that big companies can't lie to people and dupe them and get away with it. It doesn't make a difference how powerful these companies are — the U.S. court system is a great leveler."

The jury's signal ruling was not a determination of liability, but it pinned Hess' addiction to Philip Morris, and like the other Engle cases progressing in Florida, the case pressed nicotine's addictive qualities.

"To us this is the most important work we've done because it's a public health issue," Alvarez said.

Gary Paige of Paige Trop & Ameen said the case took "a lot of hard work" but said he was grateful that "the jury did the right thing."

--Additional reporting by Erin Marie Daly, Shannon Henson, Samuel Howard, Evan Weinberger and Richard Vanderford