This was a Bayer anticholesterol drug recalled in August 2001 because of 31 deaths. Litigation is now completed with over a $1 billion dollars in settlement money awarded to approximately 3,000 injured people. We represented clients who participated in these settlement awards, some of which were quite significant. While the amounts are confidential, the individual sums were in our opinion more than commensurate for the damages.

In hindsight this litigation will be noted for several interesting tactics Bayer used in defending cases, tactics which can be seen today in other drug litigations. While the litigation was still in its early stages, it became evident that Bayer over promoted Baycol in a setting where many argued that Baycol was no better than other drugs on the market while having more severe side effects than those drugs.  Further, it was argued that the dangers of Baycol were known to Bayer much earlier than was told to the public and medical profession.

This statin-type drug caused muscle destruction (rhabdomyolysis), leading to liver failure.  The risks were higher in persons who took the higher dose level, often in conjunction with other drugs.  The first signs of injury are muscle pain and weakness. Bayer developed a two-prong defense in resolving the ligation.  First, those litigants who developed rhabdomyolisis were given fair and early settlement offers to resolve claims.  Bayer took into consideration the evidence of negligence which could be presented against it.  Further, the injury is very rare and can be seen as a "signature" injury which must have been unequivocally related to the Baycol use.

The second prong of the defense was just the opposite strategy.  Bayer vigorously defended any case that was not related to the signature injury, or was a very mild case of muscle pain which never got diagnosed as rhabdomyolosis.  Bayer had to make a choice of paying many small claims or defending the claims at great defense cost.  By defending the cases, plaintiffs were forced into protracted and expensive litigation which turned out not to justify a potentially small settlement or verdict.  In the Baycol litigation, the lawsuits with smaller claims were eventually dismissed and no recovery made.