Eli Lilly and Prozac in the Crosshairs

[No-Psychs]

Eli Lilly and Prozac in the Crosshairs

The "depression" level may soon be going up for Eli Lilly, the
maker of the all too often deadly psychiatric drug prozac....

In Houston lawyer, Lilly has a colorful foe, Passionate adversary,
and able phrase-maker who has engaged in 14 suits against the
company.

By Jeff Swiatek The Indianapolis Star (starnews.com) Published on
April 24, 2000

HOUSTON -- He's Eli Lilly and Co.'s legal nightmare: an outspoken,
Yale-educated Texas trial lawyer who loves suing big corporations
and has his sights set on one in Indianapolis.

"The dark side," Andy Vickery calls his corporate targets, drawing
out the words for effect.

He's indulged himself in 14 lawsuits against Lilly. The charge:
that Lilly's best-selling antidepressant, Prozac, made some users
"go bonkers," as Vickery puts it.

Prozac lawsuits are old hat for Lilly. Fewer than 10 of the nearly
300 Prozac lawsuits Lilly has faced over the years remain on the
dockets. And the consensus among most trial lawyers is that new
Prozac lawsuits aren't winnable.

"It's not an easy litigation. I gave it up," said Indianapolis
lawyer Vernon J. Petri, who handled numerous Prozac cases in the
early 1990s.

But in Vickery, Lilly faces a wise-cracking nemesis-at-law who has
brought new focus and heightened publicity to Prozac litigation.
He's done it despite the limited legal muscle of his small,
three-lawyer firm.

At age 52, with more than 50 trials under his belt, Vickery sees
himself as an advocate for victims of Prozac and similar
antidepressants.

"A public health catastrophe," he calls the alleged tendency of
Prozac and related antidepressants to cause some users to turn
violent or suicidal.

Vickery, who says he's never used Prozac himself, is outspoken,
dogged and prone to outlandish legal tactics.

In one case, he managed to question his rival, Lilly's chief
lawyer for Prozac litigation, James T. Burns, on the witness stand
-- a scenario another Lilly lawyer termed "very unusual." In
another, he sued lawyer Paul Smith of Dallas, who in 1994 tried the
first Prozac case against Lilly.

Such tactics have gotten Vickery called "irresponsible" by a Lilly
attorney and "a vulture" by Smith's former co-counsel, Chicago
attorney Nancy Zettler.

"He belongs to a species that I think represents generally a
problem to American society," says Mitchell E. Daniels Jr., Lilly's
senior vice president of corporate strategy and policy.

Vickery shrugs off the criticisms, saying, "I am not going to shy
away from saying what needs to be said."

Shy is one thing he's not.

Happy to talk to a reporter from Lilly's hometown, he shows up for
a noon lunch appointment at his high-rise office near Houston's
downtown, tieless and complaining of muscle aches from a recent
match of handball.

Lunch, it turns out, will be the daily buffet served up in a
wooden-beamed meeting hall of Christ Church Cathedral, a massive
stone structure among downtown's glass-and-steel skyscrapers.

Vickery heads there in the leather-upholstered Jaguar he bought
his wife for her 40th birthday.

Vickery picked the Episcopal church's buffet to send a message
about himself back to Indianapolis, a message he makes sure is
understood after he polishes off his plate of Tex-Mex food and
strolls outside on smooth stone floors.

"This is my church," he says, pointing out a niche in a stone wall
where he plans for his ashes to one day be interred. "I get so
tired of Eli Lilly saying it's only Scientologists that oppose
them."

PASSIONATE ADVERSARY

The Prozac basher who wants Lilly to know he doesn't spend nights
reading science fiction novels by Scientology founder L. Ron
Hubbard is a speed-reading, gadget-obsessed, Georgia native who's
on his second marriage but still reveling in his first love of
trial law.

"He is without question the most passionate person I have ever
known," says his law partner, Paul Waldner. "I've snow-skied with
Andy and seen him go downhill faster than teen-agers ever would,
yodeling the whole time."

A fan of anything high-tech, Vickery embraced computers early for
his legal work and employs the latest software to track the complex
litigation he handles. "He wouldn't go to the bathroom without his
laptop," Waldner says.

Vickery met his wife, Carol, nine years ago. The divorcees got
married two years later. At their home in an upscale area of
Houston, she says, life with Vickery is "like summer camp." Her
husband enjoys spending time with her two children, tending a rose
garden, barbecuing for friends and going sea-kayaking at their Gulf
Coast beach house, she says.

So it's no surprise that, when Vickery's enthusiasms carry over
into the stuffy profession of law, he sometimes skirts the line of
what's expected.

"He crowds it, he's right up on it," says Waldner, a past
president of Houston Trial Lawyers Association, who remembers
Vickery beginning one legal document by quoting lyrics to a B.B.
King song.

SETTLED 11 CASES

Because only two Prozac civil lawsuits have ever come to trial,
Prozac litigation is an informational black hole where cases tend
to be quietly resolved out of court and only Lilly knows the
details.

Even so, it's clear that Vickery has fared well in this
high-stakes game of suing over one of the world's most well-known
drugs.

"I have never dropped or dismissed a case," he boasts.

In the past two years, 11 Prozac suits that Vickery filed or
joined as counsel have been settled out of court, he says. Terms
remain confidential, but presumably include cash payments by Lilly
in exchange for clients dropping all charges.

Last year, in a Hawaii courtroom, Vickery tried only the second
Prozac case to come before a jury. He represented the children of
Hawaii retiree William Forsyth Sr. who, 11 days after going on
Prozac to treat panic attacks, stabbed his wife, June, to death and
impaled himself.

The jury voted 11-0 to absolve Lilly of blame. The verdict "ripped
my heart out," says Vickery, who calls the decision a low point in
his career.

Undeterred, Vickery has appealed that decision, continues to
pursue two other Prozac cases, and hints at filing more, possibly
in Indianapolis.

Vickery won't discuss fees from the confidential Prozac
settlements, trying to suggest they leave something to be desired.

"I'm not counting on Eli Lilly for my retirement, I can tell you
that," he says.

Vickery admits to feeling Quixote-like as he duels Lilly's lawyers
over its No. 1 drug.

"It takes a kind of idiot to do it," he says. "You are fighting
one of the richest pharmaceutical companies in the world over the
thing most dear to them."

PROZAC IS FIRM'S FOCUS

Vickery has waged his fight over Lilly's dearest drug from the
29th floor of an office high-rise just west of Houston's downtown.

The heart of Vickery & Waldner is an oversized storage closet
dubbed "the Prozac room." It overflows with boxes, files and tapes
from Prozac litigation. Newspaper clippings and snapshots of
plaintiffs cover part of one wall.

Lately, Vickery & Waldner has expanded its focus to sue other
antidepressant makers, including Pfizer over its popular drug
Zoloft.

Vickery & Waldner drums up business, in part, by soliciting on its
Internet Web site, www.justiceseekers.com.

The site contains a Prozac room of the virtual sort, packed with
screenfuls of documents and articles about the drug. The firm also
handles medical malpractice cases and has represented hemophiliacs
who received AIDS virus-tainted blood.

Vickery took on his first Prozac case at the request of Richard W.
Ewing, a long-time friend who's the third lawyer at the firm.

Ewing in 1991 sued on behalf of the family of Texas rancher Bernie
A. Winkler, who shot himself in his driveway after taking Prozac
for six weeks. Later, Ewing turned the case over to Vickery, who
found Prozac litigation much to his liking.

He's spent much of the past four years filling the Prozac Room
with subpoenaed documents.

Vickery & Waldner plans to leave its crowded rented quarters and
build its own office building in a residential area of the city.

For now, Vickery taunts the "dark side" from a worn wooden desk
looking out floor-to-ceiling windows to a grand view of the Houston
skyline.

More than 20 photos, most of family, are hung and propped about.
On his computer screen floats a screen-saver of actress Michelle
Pfeiffer in a red dress. Opposite sits an ornate Bible opened to a
highlighted verse from Isaiah with the admonishment "Learn to do
well, seek judgment, relieve the oppressed."

"To keep my focus," Vickery says, of the Bible.

The focus of Vickery's Prozac suits is another book: the
Physicians' Desk Reference. U.S. doctors rely on the
3,000-plus-page volume to inform them of a drug's side effects.

Lilly's refusal to expressly list violent behavior, including
suicide, as a possible side effect of Prozac, forms the basis of
Vickery's lawsuits. Lilly contends putting such a dire warning on
Prozac's package label is unwarranted.

"Any label change (about suicide and violence) for Prozac was
never on the table, never negotiable from our standpoint," says
Lilly's Daniels.

Vickery hauls the weighty red book from a shelf and opens to
Prozac and its long list of side effects.

"They warn about rashes, by god, but nothing about suicide," he
says. "To satisfy me, and that sounds very egocentric, all Lilly
would have to do is put in a bold-faced, boxed warning. This isn't
lawyer nitpickery. This is very important how it appears and
where."

GIFT OF GAB

Vickery grew up in middle-class, Southern Baptist family in
Atlanta, the middle son of a homemaker mother and a father who ran
an insurance agency. His father told him at age 11 that the boy's
gift of gab marked him for lawyering.

Gifted with academic smarts as well, Vickery graduated high school
as class valedictorian and became the first Ivy Leaguer in his
family. He enrolled at Yale University as an American studies
major, going on to earn a law degree at the University of Georgia
School of Law.

To pay for Yale, Vickery had enrolled in ROTC. He fulfilled his
military obligation as an Army attorney, serving in one of the
Army's most notorious cases: the trials of Lt. William Calley Jr.
and others who took part in the massacre of Vietnamese civilians at
My Lai.

As a young lawyer, Vickery also clerked for U.S. Appeals Court
Judge John R. Brown in Houston, a man known for his colorfully
argued opinions.

It was Brown who impressed on Vickery the value of the trenchantly
put phrase.

"The judge told me, 'An idea poorly expressed dies aborning,"'
Vickery says, displaying a book of quotations given him by the man
he calls "my judge."

Vickery has taken the advice to heart. In his latest lawsuit,
filed in Hawaii in January by the parents of teen-ager Hugh
Blowers, who hanged himself at home after taking Prozac, Vickery
opined that the boy's life "was sacrificed on the altar of Lilly's
profits."

His legal writing, complete with exclamation marks and sarcastic
footnotes, once provoked U.S. District Court Judge S. Hugh Dillin
to call a Vickery Prozac brief "inflammatory" and "scurrilous."

The brief in question came in a Vickery lawsuit that was the last
of 75 federal Prozac cases consolidated in Dillin's court in
Indianapolis. In March, the judge remanded the case back to Texas
courts.

Those on the receiving end of a Vickery legal blast may cringe on
hearing he has no plans to rein in his colorful self-expression.

He does admit, though, that there's a limit to the time he'll
invest dueling Lilly and other antidepressant makers in court.

"They whip my a-- three times and I'm outa there. I just can't
take any more than that," he says, swiveling in his office seat.

But until Vickery's third lost verdict, Lilly will remain in his
sights, he vows. "They know damn well I'm not going to quit."

© 2000 Vickery & Waldner, L.L.P. All rights reserved.