NEW ORLEANS — (Mealey’s) A mistrial was declared April 2 in a Children’s Motrin trial in a Louisiana federal court after the jury became hung, according to two attorneys (Keisha Hunt v. McNeil Consumer Healthcare, et al., No. 11-457, E.D. La).
The jury in the U.S. District Court for the Eastern District of Louisiana began deliberating Tuesday after hearing evidence since March 17. Plaintiff attorney Kenneth T. “Tommy” Fibich of Fibich, Hampton, Leebron, Briggs & Josephson in Houston told Mealey Publications that during the first day of deliberations, the jury asked Judge Jane Riche Milazzo what happens if they cannot agree.
Fibich said Judge Milazzo instructed the jury before dismissing it for the night. Fibich said a mistrial was declared by mid-afternoon yesterday.
Insults, Threats, Marshal?
“The jury foreperson reported insults and threats and told the judge she needed a U.S. Marshal in the jury room,” Fibich said. “I presume that was true and not just a ruse to get a mistrial as they had been telling the court they were deadlocked since yesterday.”
A defense attorney told Mealey Publications that McNeil’s two motions for judgment as a matter of law (JMOL), which were made Monday, remain pending before Judge Milazzo. In them, McNeil again seeks JMOL on the grounds of preemption by federal law and because the plaintiff failed to meet her burden of proof under the Louisiana Products Liability Act (LPLA) that Children’s Motrin was unreasonably dangerous because of an inadequate warning.
A hearing on the JMOL motions is set for April 16.
M.H., daughter of Keisha Hunt, took Children’s Motrin and suffered Stevens-Johnson syndrome and/or toxic epidermal necrolysis (SJS/TEN) and burn-like injuries. Hunt sued McNeil Consumer Healthcare under the LPLA, alleging that Children’s Motrin is defectively designed and contained inadequate warnings about health risks.
Children’s Motrin is a nonprescription, over-the-counter brand of ibuprofen sold as a pain reliever/fever reducer.
On March 11, Judge Milazzo denied a motion by manufacturer/defendant McNeil Consumer Healthcare, a subsidiary of Johnson & Johnson, to find that Hunt’s claims are preempted by federal law.
According to witness lists filed March 12 by the parties, Hunt planned to call these experts: Randall Tackett, Ph.D., of the University of Georgia in Athens, Ga., who was to testify about general causation; David Madigan, Ph.D., of Columbia University in New York, who was to testify about drug safety reporting; Cheryl D. Blume, Ph.D., of Pharmaceutical Development Group Inc. in Tampa, Fla., who was to testify about regulatory matters; Stephanie Frederic, M.D., of Baton Rouge, La., who was to testify about specific causation; and R. William Soller, Ph.D., of the University of California at San Francisco, who was to testify regarding drug label comprehension.
McNeil’s planned experts were Robert Harrison, M.D., of Hilton Head Island, S.C., who was to testify about pediatric infectious diseases; Jean-Claude Roujeau, M.D., of Antony, France, who was to testify about dermatology and general causation; Laurentius Marais, Ph.D., of Novato, Calif., who was to testify about the association between SJS/TEN and exposure to ibuprofen; Steven Weisman, Ph.D., of Morristown, N.J., who was to testify about the pharmacology of ibuprofen; and Lindsey Wells, M.D., who was to testify about gynecological injuries.
Hunt is represented by Patty Ann Trantham and Robert L. Salim of Salim-Beasley in Natchitoches, La.; Jay H. Henderson of Jay Henderson PLLC in Houston; Russell S. Briggs and Fibich of Fibich, Hampton, Leebron, Briggs & Josephson in Houston; Sara J. Fendia of the Law Offices of Sara J. Fendia in Houston; and Val P. Exnicios of Liska, Exnicios & Nungesser in New Orleans.
McNeil is represented by James B. Irwin, Douglas J. Moore, Kelly E. Brilleaux and Timothy F. Daniels of Irwin, Fritchie, Urquhart & Moore in New Orleans; Kari L. Sutherland and Paul V. Cassisa Jr. of Butler Snow in Oxford, Miss.; Kenneth P. Conour of Preuss, Shanagher, Zvoleff & Zimmer in San Francisco; and Matthew P. Smith and Vernon I. Zvoleff of Drinker, Biddle & Reath in San Francisco.
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