Ardor in the Court

When Dallas plaintiff’s attorney Kip Petroff went after diet-drug maker Wyeth-Ayerst, everyone said he didn’t have a chance. Everyone was wrong.

KIP PETROFF WALKED INTO A MEETING ROOM at Philadelphia’s Ritz-Carlton hotel where about 150 of the top plaintiff’s lawyers from New York, Boston, Chicago, and Los Angeles were scrambling for seats. The arrival of some attorney from Dallas at a seminar on lawsuits against pharmaceutical companies shouldn’t have turned heads. In fact, at similar meetings a year earlier, Petroff might have had trouble getting a seat himself. But this time was different.

When the forty-year-old made his entrance on that cold March day, he didn’t swagger—not exactly. But instead of grabbing an empty space just anywhere, he strode quite confidently to the front of the room, where he found a place at the head table. Most of the audience members were stuffed into business suits and wearing lawyerly ties, but Petroff had on slacks and a black polo shirt that showed off his biceps. As he moved forward, a murmur rose up from the crowd, followed by a smattering of applause. This was the lawyer who had finally gotten a big drug company to turn over incriminating documents, people whispered. This was the guy.

Coming from a group whose collective ego requires its own zip code, the recognition felt good, Petroff admitted later, though it wasn’t the only recognition he’d received. Three weeks before, he’d been featured on 60 Minutes for doing what attorneys at white-shoe firms from coast to coast swore was impossible: He had put New Jersey—based American Home Products ( AHP), the seventh-largest drug company in the world, on the ropes. Now he’d come to Philadelphia to explain how he did it—and what he was going to do for an encore.

Petroff, who resembles a young Tommy Lee Jones, isn’t the most successful or best-known lawyer in Dallas; far from it. But from his offices on Turtle Creek, he has taken a leading role in the legal wrangle over two prescription diet drugs marketed by Wyeth-Ayerst, a division of AHP: Pondimin (the brand name of fenfluramine, one half of the better-known combination drug called fen-phen) and Redux. Six million or more people, mostly women, took the drugs between 1994 and 1997, and most were successful in their attempt to lose weight. But in September 1997, as evidence mounted that some of these same people had developed heart-valve damage or were afflicted with pulmonary hypertension—a rare and usually fatal disease—the U.S. Food and Drug Administration requested that Wyeth remove Redux and Pondimin from the market. Almost immediately, a flurry of lawsuits were filed. Eighteen months later, hundreds of lawyers are putting pressure on Wyeth officials to disclose what they knew about the risks associated with the drugs and when they knew it.

But none of them has worked as hard or dug up as much potential evidence as Petroff and his partner, Robert Kisselburgh, who represent or have represented a total of one hundred former users of Pondimin or Redux to date. (Their client in their next trial, scheduled to begin May 10 in Van Zandt County Court, is Debbie Lovett of Grand Saline, whose heart-valve damage precipitated a series of strokes.) The aggressive tactics of the two-man shop have confounded Wyeth’s legal team, whose local counsel include Vinson and Elkins of Houston. They’ve embarrassed plaintiff’s attorneys in other states, many of whom stalled out during the first year of litigation, unable to get documents or take depositions. And they’ve impressed high-profile lawyers familiar with the case. “Kip went out on his own and demanded documents and depositions, and he wouldn’t take no for an answer,” says Alex H. MacDonald, a partner at one of New England’s biggest firms, Robinson and Cole, which filed the first wrongful-death suit involving fen-phen. (Lawyers for Wyeth did not return calls seeking comment on Petroff and the suits filed against the company.)

How did Petroff become such a big deal? “He pushed. He pushed hard,” says Kisselburgh simply. “He watched other firms around the country sit back and go with Wyeth’s timetable. Kip had no intention of waiting around like that.” And Petroff had something else on his side: Texas, where the courts have a reputation for speed and the judges don’t cotton to the all-inclusive confidentiality orders that are so popular with corporate defendants. Last September, after Wyeth’s lawyers accidentally turned over to Petroff some inflammatory documents that might be considered “privileged,” they asked Tarrant County judge Fred Davis to get them back and seal them. “There’s a lot they don’t want out, either before a jury or in the press,” Petroff says. Unfortunately, the offending documents were attached to a motion filed in several Texas courts, and Judge Davis ruled that they were part of the public record. It was a stunning setback for Wyeth: The documents showed that the company’s lawyers did not want its promotional materials to use the word “safe” to describe Pondimin unless it was somehow qualified. And they showed that its in-house counsel wanted a very strong warning on Pondimin’s box—though Wyeth executives did not.

Within just a few months of filing his first suit last March, Petroff arranged—with Judge Davis’ backing—to depose Wyeth-Ayerst’s medical director. Observers sucked in their breath: Was the lawyer moving too fast? Was he really sufficiently prepared? And if he wasn’t, wouldn’t he screw up his case? One pundit at the American Trial Lawyers Association in Washington, D.C, observed that it was too much of a maverick move, that Petroff was a “cowboy.” But he proved everyone wrong. By that May he had forced Wyeth to turn over nearly five million documents, and did so months before anyone else got them. He began taking depositions by the dozen before other lawyers took their first. And then he did something really outrageous: He shared everything he got with his peers around the country. “Kip has been very generous,” says Mike Williams of Portland, Oregon, who’s representing more than one hundred plaintiffs in suits against Wyeth.

Petroff’s reputation as a cowboy is ironic since he couldn’t be mistaken for a native Texan. “One of my partners gave

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