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August 14, 2015, The Am Law Litigation Daily
Phyllis Jones, Paul Schmidt, and Michael Imbroscio are quoted in an Am Law Litigation Daily article regarding their victory on behalf of client Eli Lilly in the Cymbalta litigation that looks closely at the cross-examination which exploited holes in plaintiff Erin Hexum’s case.
During Hexum’s questioning, Jones used personal details from prior testimony to elicit the response she was looking for, asking Hexum, “I think your husband described you as a reader?” By piecing together Hexum’s responses, Jones established that Hexum consciously chose not to go back on the drug, declining to taper off her dosage more gradually to blunt the withdrawal symptoms.
Schmidt, who cross-examined the doctor who prescribed the medicine, asked, “In light of the other possible treatment options, would you have made the same decision to prescribe Cymbalta to Ms. Hexum?” In a damaging admission, Dr. Wollaston said if he was doing it all over, he would have done the same thing.
Consequently, Imbroscio argued to the judge that the plaintiffs could not meet the threshold to establish liability—that Wollaston would not have prescribed the medicine if Lilly had a clearer warning label. “That label could have said, ‘Nikki—Erin Nicole Hexum—will suffer horrible consequences if you give this drug to her,’ and he didn't read it, so it didn't make a lick of difference,” Imbroscio said.