Fen-Phen Class Action Settlement Approved by Federal Judge

This news update information page is intended to provide a summary of the recent legal and medical developments in the Fen-Phen diet drug lawsuits against American Home Products Corporation and Wyeth-Ayerst Laboratories and A. H. Robins.

On Monday August 28, 2000 United States District Judge, Louis C. Bechtel, issued an Order approving the Class Action Fen-Phen Settlement with American Home Products Corporation. The settlement was for injury claims from the drugs Pondimin and Redux. The plaintiff's lawyers for the class and American Home Products Corporation agreed to the terms of the settlement in the Fall of 1999. The hearing in the Federal Court for the Eastern District of Pennsylvania before Judge Bechtel began in the first week of May with live testimony from doctors, economists, and lawyers involved in the negotiation. After the week of live testimony, the Court accepted documentary evidence for review in evaluating the fairness of the settlement to the members of the class. There was a supplemental hearing on August 10, 2000 to address amendments to the settlement to put more money up front to pay the Accelerated Implementation Option (AIO) settlements. There were so many injured Pondimin and Redux diet drug users that had filed for this class of benefits that there were insufficient funds allocated in the early years of the initial settlement agreement to pay all the claims.

The Class includes all pondimin and redux users except those with Primary Pulmonary Hypertension. This "fairness" hearing was a procedure to determine whether the class members had been adequately represented and whether the class settlement met the United States Constitutional guarantees of due process. There were several groups of lawyers objecting to the settlement. The objections were based upon concerns about class members who have lost their rights to bring an individual lawsuit through the class settlement, but who receive little or no compensation as a result of the settlement.

Medical Monitoring

One part of the proposed settlement involves "medical monitoring funds" which would pay for a medical tests called an echocardiogram and a physician's visit for persons who took Fen-Phen or Redux. Individuals who discovered through this screening program, that they had an injury from the diet drugs would have a right to opt out of the settlement but would lose any right to claim punitive damages under their particular state's laws. An individual who discovered a diet drug related injury during the screening period who chose to remain in the class settlement, would be entitled to participate in receiving compensatory damages under the "settlement grid" if their injury was severe. This time period for claiming compensation for severe injuries would extend for 15 years. Furthermore, if an individual received compensation for a particular injury under the grid, and the injury progressed to a more severe stage during the next 15 years, that individual would have a right to "step up" to a higher compensation level and receive more funds.

Compensation for Injury

The Fen-Phen Class Settlement that has been approved by Judge Bechtel also includes a "back end opt out" for individuals who discover that they have a severe injury which qualifies them for matrix level payments, and make this discovery after the end of the intermediate opt out period. These individuals then can opt out after the screening period to pursue a lawsuit in State Court for general damages, but not for punitive damages.

Appeal of Judges Approval

It is almost certain that this Fen-Phen Class Action Settlement which has been approved by Judge Bechtel will be appealed to the Federal Circuit Court of Appeals, and it is possible that it could eventually be heard by the United States Supreme Court. A Class Action Settlement such as this Fen-Phen settlement, has a possibility or probability of being found unconstitutional by the Appeals Court or the United States Supreme Court. The Fen-Phen Class Action Settlement has been carefully crafted to try to avoid some of the pitfalls which have caused prior class settlements particularly in the asbestos area to be found unconstitutional by the courts. The Federal Appeals Courts, and particularly the U.S. Supreme Court, has been very critical of settlements on behalf of individuals who did not themselves or through their own personal attorneys have a role in negotiating a settlement which extinguishes their rights under state law to bring claims for damages. The drafters of the Fen-Phen class settlement included the three "opt out" provisions in an effort to remedy this concern. Additionally, the Fen-Phen Class Action Settlement waives state law statute of limitations so that it actually revives claims and provides for compensation for individuals whose time may have already run out under their state laws for bringing these claims.

SUMMARY OF PROCEDURES FOR PARTICIPATING IN THE FEN-PHEN CLASS ACTION SETTLEMENT

1. The Class Action Settlement provides that individuals who believe they may have been injured by these drugs must register for benefits or file forms to opt out of the class or they will be ineligible to participate and they will lose any rights that they may have to claim damages.

2. Individuals who believe that they may have been injured should get an echocardiogram immediately to determine whether their injury, if they have one, qualifies them for compensation under the settlement and get legal advice as to whether it is in their best interest to opt out of the class settlement and pursue any remedies they may have under state law.

3. It is important to get competent legal advice and to follow the progress of the class settlement in the courts of appeals because if the class settlement is ultimately rejected, an individual must be prepared to promptly bring legal action under their state laws in their state court system to avoid losing their rights to recover compensation.

Our law firm is happy to give more detailed information and opinions concerning any rights you may have under this class action if you will fax a copy of an echocardiogram to us at (727) 577-9696. We cannot give you an opinion concerning your rights without a review of this critical medical evidence. We will keep any information which you send us in the strictest confidence, and we do not and will not distribute any of your personal information to any other entity or individual without your specific knowledge and consent.