5/16/2000 In Houston lawyer, Lilly has a colorful foe

Sorry, we should have gotten this to you sooner. There is too much happening
to keep up with it all! This is an article from the paper in the home of Eli
Lilly, the Indianapolis Star. They did a good job on this article about Andy
Vickery and his firm. The firm has been an answer to prayer for many families
who could not find an attorney with the courage to take on these companies
who manufacture SSRI antidepressants.

Ann Blake-Tracy

In Houston lawyer, Lilly has a colorful foe

Passionate adversary and able phrase-maker has engaged in 14 suits against
the company.

By Jeff Swiatek

The Indianapolis Star

Last updated 12:49 AM, EST, Monday, 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.”

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