Robert Courtney, the defendant, stays in prison facility as civil case unfolds.
By Jeff Swiatek
October 09, 2002
KANSAS CITY, Mo. -- With two drug company defendants dropped from the case, the civil trial of pharmacist Robert Courtney is expected to move faster and be less contentious.
It may not be any less emotional.
Opening day of testimony Tuesday in the case against the rogue Kansas City pharmacist who diluted drugs used on hundreds of cancer patients turned the courtroom at times tearful.
Several spectators and at least one juror dabbed their eyes during the daylong testimony, and a psychiatrist broke down on the witness stand as attorneys for plaintiff Georgia Hayes began laying out their case seeking compensation from Courtney and his pharmacy.
Hayes says she suffered physically and emotionally from receiving diluted cancer medications from Courtney, including Gemzar made by Eli Lilly and Co.
The lawsuit by Hayes, 44, a Missouri teacher, is the first to come to trial in a still-mounting count of more than 400 lawsuits against Courtney and his business. He pleaded guilty last year to criminal charges in his scheme to dilute drugs to boost his profits.
Courtney is being held at a privately run jail for federal criminals near the U.S. Federal Penitentiary in Leavenworth, Kan., awaiting sentencing. He will not appear at the trial in Jackson County Courthouse in Downtown Kansas City because federal law doesn't permit a prisoner to attend a civil trial, a plaintiff's attorney said.
But it was Courtney who was at the center of testimony by six opening-day witnesses, including Meckenzie Hayes, the 14-year-old only child of Georgia and Don Hayes.
Meckenzie, who got special permission to miss school to attend the trial, testified that she wrote Courtney a letter after finding out he sold diluted doses of the cancer drugs Taxol and Gemzar used by her mother to treat the ovarian cancer from which she still suffers.
Asked by one of her mother's attorneys to describe part of the letter, the teenager began weeping on the witness stand and was quickly dismissed. She buried her face against the shoulder of her mother, who sat on spectators' benches with her husband.
Dr. Rebecca Merritt, a Kansas City psychiatrist who has treated Hayes for depression and other symptoms stemming from her cancer fight, also cried during the reading of the girl's letter in court.
In the letter, which began "Dear Robert," Meckenzie admonished the pharmacist for the "horrible thing" he did to her mother and said that, "I hope you are full of guilt because there is no excuse for what you did."
One of Hayes' attorneys, Scott McCreight, said during a break in the trial he didn't know whether the letter was ever mailed to Courtney.
Merritt testified that Hayes suffered acute-stress disorder after finding out she received intentionally diluted medication.
"She had put a lot of trust in all the health-care professionals she worked with. She felt very betrayed," Merritt said.
Hayes originally had named Lilly and Bristol-Myers Squibb Co. as co-defendants in her lawsuit. The drug companies were dropped from the lawsuit Monday after telling Jackson Circuit Court Senior Judge Lee E. Wells that they agreed to an out-of-court settlement with Hayes.
The same settlement also included more than 300 other pending lawsuits against the drugmakers and encompasses any future lawsuits in the case, said one of Hayes' attorneys, Michael Ketchmark.
Lilly of Indianapolis, and Bristol-Myers, of New York, had been named as defendants because plaintiffs alleged the companies knew or should have discovered that their drugs were being criminally diluted by Courtney.
It's not known if the settlement includes cash awards to plaintiffs or their attorneys who typically get 25 percent to 50 percent of civil judgments or settlements. Details of the settlement have remained confidential.
Courtney attorney David Buchanan did not cross-examine any opening-day witnesses or object to the introduction of any exhibits by opposing attorneys.
In his opening statement to jurors, Buchanan said, "There's not going to be a dispute over what Mr. Courtney has admitted."
He said Courtney's defense will aim to show through expert witnesses that "the dilution, while it's despicable it happened, they don't believe it made any difference" in Hayes' treatment outcome.
"The question's going to be how she is damaged, in what amount," Buchanan said.
The presence of the dismissed drug companies was still felt in court, with their names appearing on poster boards used by Hayes' attorneys. At one point one of them referred to "defendant Lilly," before quickly correcting himself.
Ketchmark said the 11-woman, four-man jury, which includes three alternates, was not told of the settlement reached with the drug companies. The drug firms' attorneys participated in the first two days of jury selection.
Several other plaintiffs who have lawsuits against Courtney and were attending the trial refused to answer questions about the settlement, saying their attorneys told them not to comment.