Texas Jury Awards 23.36 Million Dollars in Fen-Phen Lawsuit
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 Friday, August 6, 1999, in the first Fen-Phen diet drug jury trial to reach a final verdict, a Texas jury awarded 23.36 million dollars to Debbie Lovett, a 36 year old woman who suffered heart valve damage after taking Pondimin, the brand name for Fenfluramine, the "Fen" part of Fen-Phen. The jury intended 20 million dollars of the award to be punitive damages to punish American Home Products for failing to disclose to the American public, the doctors and the Federal Food & Drug Administration, knowledge that the company had that Pondimin and Redux could cause heart valve damage. There was also evidence that Wyeth-Ayerst Laboratories, J. H. Robins and American Home Products intentionally failed to provide proper warnings of the extent of the risk that the diet drugs could cause primary pulmonary hypertension. PPH is an often fatal lung disease.
There are over 3,000 pending lawsuits against American Home Products for their marketing and sales of Pondimin and Redux. Many of these lawsuits have also been filed against manufacturers of phentermine the "phen" of fen-phen. Out of those cases, there have only been a handful of settlements. Two of the lawsuits that were settled were Texas cases in which a trial had begun. The first Fen-Phen case to begin a trial was a non-fatal case which was pending in Cleburne, Texas and was settled on April 8, 1999. A Fen-Phen wrongful death case brought by the family of a 35 year old woman in Houston, Texas was settled in late June 1999, after several weeks in trial.
The drug manufacturers and lawyers representing injured consumers of the drug, had been following these cases closely because settlement values of lawsuits are generally based upon the probability of a verdict in favor of the injured consumer and the amounts that have been awarded in jury verdicts. It is believed that American Home Products chose to allow Debbie Lovett's lawsuit to proceed to a final jury verdict because it was weaker than many other cases. Ms. Lovett had some prior heart problems and her own physician doubted that the drug caused her injury. Based on these facts, it is believed that American Home Products had some probability of obtaining a favorable verdict in this case which would reduce the settlement value of pending lawsuits.
There have been off again on again attempts by American Home Products to discuss settlement with the attorneys representing injured consumers, but without any jury verdicts as a yardstick for settlement, those negotiations did not get far. It is believed that this verdict will give additional leverage to consumer lawyers to obtain fair settlements. It is also believed that the financial market place and shareholders of American Home Products will apply pressure to the company to resolve this litigation. American Home Products is a financially sound company that according to financial analysts could pay billions of dollars to settle these claims or pay verdicts without a significant adverse effect on the company. American Home Products reported second quarter 1999 profits of $399,000,000.
One of the most frequently asked questions to our website is about class action Fen-Phen or Redux suits. There is one so called "limited fund" class action against Interneuron Pharmaceuticals Inc. that has received preliminary approval by a federal judge. However, the United States Supreme Court has repeatedly questioned the fairness of any class action settlement which purports to extinguish the rights of future consumers who may discover injury at some later time. On June 23, 1999, the U.S. Supreme Court handed down the decision of Ortiz v. Fiberboard Corporation which is an asbestos class action "limited fund" settlement which was agreed to by the Fiberboard Corporation, its insurers, its attorneys and individuals suffering from asbestos injuries. The Supreme Court rejected approval of that class action settlement. While the Ortiz vs. Fiberboard Corporation is an asbestos case, exactly the same legal principles would apply to any proposed Fen-Phen Redux diet drug class action. Therefore most lawyers representing injured diet drug consumers are bringing individual lawsuits if there are sufficient medical indications that there is injury caused by the diet drugs. This leaves open the question of what can consumers do who do not have an identifiable injury, yet need medical screening or on-going monitoring in the future to determine whether they will develop a heart valve or injury or primary pulmonary hypertension as a result of diet drug use.
There are a number of so called "medical monitoring" class action lawsuits that have been filed by attorneys in different states. These medical monitoring class actions are solely to recover a damage fund to pay for medical screening of non-symptomatic diet drug consumers. The pharmaceutical manufacturers are refusing to voluntarily pay these funds. The medical monitoring class action trial has already begun in New Jersey in Middlesex County. In that Middlesex, New Jersey class action medical monitoring case, the plaintiffs are a certified class of individuals who have used either Fenfluramine (marketed as Pondimin) or Dexfenfluramine (marketed as Redux) and who are asymptomatic, that is they have not manifested either of the two physical conditions that can result from the diet drug use. Those conditions are pulmonary hypertension and left sided cardiac valvulopathy. The consumers in that case are asking for a judgment requiring the diet drug manufacturer, American Home Products, to provide and pay for a long-term program of medical monitoring for members of the class. This proposed program would include periodic echocardiograms and other investigations over a period of years with varying tracks for persons who exhibit positive test results. There are other medical monitoring diet drug class action cases at various stages in different states. Each of those cases however would only provide medical monitoring for the plaintiffs in those states and would not provide general damages for pain, suffering and loss of enjoyment of life, or loss of earnings.
The manufacturers are vigorously defending all of these lawsuits generally claiming that the diet drugs do not cause injury and that, even if the diet drugs to cause injury, the injury in each particular consumer was pre-existing or is different than that which could be caused by the diet drugs. American Home Products, the diet drug manufacturer is challenging the scientific methodology of any doctor who testifies against them and is questioning the science upon which doctors rely in testifying that the diet drugs cause injury and that particular plaintiffs were injured. Part of American Home Products defense strategy is to get as many of the cases transferred to the Federal Court as possible. In Federal Court it is easier for the defense to challenge the methodology upon which a medical expert relies in coming to conclusions and to prevent a jury from hearing testimony that does not meet clear scientific criteria. In the New Jersey class action case, the judge appointed a special master to assist her in evaluating the scientific methodology relied on by the injured consumers expert witnesses. The general master appointed by the judge in the New Jersey case concluded that the doctors testifying for the injured consumers had reached their opinions using standard scientific methods of reasoning from analogy and from reliably proven facts found by responsible investigators and reported in published peer review studies. In summary, the special master in the New Jersey class action found that the experts' testimony met the Federal Standard set forth by the U.S. Supreme Court in Daubert v. Merrell Dow Pharmaceuticals Inc. This "Daubert" standard requires that a judge inquire into the scientific methodology used by an expert witness prior to allowing the jury to hear the testimony.
In summary, the recent Texas multi-million dollar damage award against American Home Products should increase the settlement value of the Fen-Phen lawsuits, even if that verdict is ultimately reduced by the judge or reduced on appeal. That verdict does show that the members of the jury were outraged when they learned of the conduct of American Home Products in concealing the dangers of Pondimin and Redux and that the jury was convinced that Fen-Phen does cause serious health problems.
Please contact us though our contact page if you would like information on the pending cases in a specific state or if you would like us to find you an attorney in your state.