$1.8 billion pot gives Tillery firm bragging rights in certification motion

Steve Korris Dec. 13, 2007, 2:31pm

Durbin praised Tillery class action

Tillery has amassed $1.8 billion in class settlements

Stephen Tillery has achieved settlements worth $1.8 billion in eight of his biggest class action suits, according to Aaron Zigler of Korein Tillery, in St. Louis.

Zigler listed Tillery's triumphs in a Dec. 5 motion to certify a Madison County class action against Pfizer, on behalf of Illinois citizens who swallowed Bextra pills.

Zigler offered Associate Judge Ralph Mendelsohn another reason to certify a class action against Pfizer – because U.S. Senator Dick Durbin would approve.

According to Zigler, Durbin praised a Madison County settlement between Korein Tillery and Pfizer twice during debate over the Class Action Fairness Act.

Durbin said the settlement showed how class actions serve the public good and why the act should not pass, Zigler wrote.

Congress passed the act in 2005, steering most new class claims to federal courts.

Shortly before the effective date of the act, Tillery again sued Pfizer in Madison County.

Tillery alleged that Bextra and Celebrex injured consumers, but he did not seek damages for anyone's injuries.

He sought the difference between what people paid for the pills and what they would have paid if they had known the truth about the pills.

Pfizer moved for transfer to Cook County, and Circuit Judge George Moran granted it.

When Tillery asked Moran to reconsider, Moran abruptly recused himself.

Chief Judge Edward Ferguson assigned the case to Mendelsohn, who vacated Moran's transfer order.

Although Tillery's complaint lumped Celebrex and Bextra claims together, Zigler's Dec. 5 motion proposed a class for Bextra only.

Pfizer sold about $2.7 billion worth of Bextra in four years, Zigler wrote.

The Food and Drug Administration asked Pfizer to remove it from the market in 2005 because it increased the risk of heart attack and caused serious skin reactions, he wrote.

Zigler estimated the class in the hundreds of thousands, though he spared himself and Tillery the task of finding one who suffered or one to whom Pfizer lied.

"…[P]laintiffs need only show economic losses and not that anyone suffered personal injury as a result," Zigler wrote.

"…[T]here is no need to prove that anyone was deceived, such as the patient or doctor," he wrote. "This is important because in the case of prescription drugs, the drug company is far more informed than anyone else in the distribution chain."

Nor would Tillery and Zigler need to prove that everyone in the class suffered damages or that anyone in the class suffered more than a trivial loss.

Courts have found substantial injury when an unfair act causes a small harm to a large number of people, Zigler wrote.

"Moreover," he wrote, "injury can be found even where many consumers were satisfied with the product and would have entered into the transaction even fully informed."

After admitting that some people benefited from Bextra, Zigler spun around to declare, "The only entity benefiting from Pfizer's conduct was Pfizer."

Spinning again he wrote, "…whether or not there were countervailing benefits to society resulting from Pfizer's unfair conduct should be decided on a classwide basis."

Zigler then trumpeted his best argument – that Mendelsohn should certify a class action because Stephen Tillery would lead it.

"Korein Tillery was named by the National Law Journal in its 2003, 2004, and 2007 'Plaintiffs' Hot List' as one of the top 15 plaintiff's from all specialties," Zigler wrote.

"Korein Tillery has been appointed as class counsel in more than forty class actions and has successfully negotiated some of the country's largest settlements," he wrote.

He listed all the class actions, not only from Illinois and St. Louis but also from Alabama, Connecticut, Maryland, Massachusetts, New Jersey and Pennsylvania.

For eight of them he provided estimated values of the settlements, ranging from $70 million to $350 million.

While Zigler lauded Tillery, he couldn't find anything positive to say about their clients in the Pfizer suit, Ricky Lott, Gerald Sumner, Sandy Becker and Mike Baldwin.

Zigler excused them by quoting a Fifth District appellate court decision that a plaintiff "need only have a marginal familiarity with the facts of his case and does not need to understand the legal theories upon which his case is based to a greater extent."

"They have a sufficient interest in the outcome to ensure vigorous advocacy and therefore are adequate representatives," he wrote.

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