Appeal Planned by Woman Blaming Alka-Seltzer Plus for Stroke

Appeal Planned by Woman Blaming Alka-Seltzer Plus for Stroke

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OGDEN, Utah (AP) -- An Ogden woman who lost a lawsuit blaming her stroke on Bayer Corp.'s Alka-Seltzer Plus plan to seek a new trial.

Her attorneys say they are more optimistic after learning that the jury was not unanimous against her.

The lawsuit by Marlus Hardy, whose stroke left her left her wheelchair-bound, was among the first to go to trial among hundreds of similar lawsuits over the product ingredient phenylpropanolamine, or PPA.

When the jury returned its decision on Feb. 10, it appeared the eight jurors were unanimous.

But two jurors told court officials they had actually found against Bayer. Confused in announcing the verdict, they thought a majority moved all votes to one party, similar to an electoral college.

"There was no jury intimidation, I'm not suggesting that," said Hardy attorney Colin King of Salt Lake City. "They didn't realize when they were polled by the judge that he was asking them what their individual verdict was."

The fact they had won over some jurors has Hardy's lawyers heartened at the prospect of a new trial.

They play file a motion for a new trial.

Hardy's lawyers claimed Bayer knowingly decided to keep using the now-banned PPA with hundreds of strokes anticipated annually considered a small cost compared to the $100 million sales of Alka-Seltzer Plus.

A majority of the jurors didn't buy that, said juror Harry Webster of Ogden.

Webster said the jury was not impressed with Bayer, but found Hardy's lawyers hadn't proved she took the Alka-Seltzer Plus.

Family members said they gave her the cold remedy, but the owner of the store where they said they bought it testified he did not stock it.

Webster said jurors pored over the store's invoices, which showed no Alka-Seltzer Plus. "There was nothing to tie it to her."

King said the store invoices are chief among the grounds to seek a new trial, and for the appeal if the trial motion fails.

Bayer's lawyers found the invoices during the last week of the trial, and Hardy's attorneys objected strenuously to their being allowed in evidence on such short notice.

"We're not convinced they had all the invoices," King said. "We didn't have a chance to review them, to prepare for them, or look at the prior store owner's invoices."

The ingredient was banned by the FDA in November 2000, two months after Hardy had her stroke.

(Copyright 2005 by The Associated Press. All Rights Reserved.)

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