Lawsuit Binge Follows Diet-Drug Study
Within 24 hours of a news conference in July at the famed Mayo Clinic warning of possibly severe heart-valve damage from two popular diet drugs, a San Francisco law firm rushed to court to file its first class-action lawsuit against the drugs’ makers and marketers.
By August, New York lawyer Paul Rheingold had filed a $10-million damage case in federal court in Brooklyn on behalf of a diet-drug user who was forced to have surgery to replace two of her heart valves. Soon, Rheingold plunked down $24,000 to take out a huge ad in USA Today--just part of his national media campaign to woo clients.
This month, a gaggle of Washington law firms joined the hunt for the gold in the diet-pill sweepstakes. And as of Friday, several lawsuits already were on file in federal courts in Washington and nearby Greenbelt, Md.
A race to the courthouse is nothing new in what are known as mass torts, but these days it always seems to be jet-propelled.
A deluge of lawsuits, filed in courthouses from Hawaii to New York, has followed the Mayo Clinic warnings and a recall in September of the diet drugs Redux and fenfluramine. (Fenfluramine is often prescribed as part of a combination with phentermine, popularly known as fen-phen.)
“There’s a case filed every five minutes,” joked Scott Jacobs, managing editor of a Mealey’s Litigation Report, a group of newsletters that tracks specialized areas of litigation. So promising is the diet-drug vein now being mined by trial lawyers that Mealey’s has launched a special newsletter devoted to fen-phen and Redux, with annual subscriptions selling for $597.
Trial lawyers across the country have identified this pair of diet drugs as a growth business for two major reasons. The number of people who have taken the drugs probably approaches 2 million, making the pool of potential claimants huge. Further, even before lawyers begin the process of ferreting out information from the drug companies, there already is strong evidence of a link between the drugs and serious diseases, the plaintiffs’ lawyers say. “It’s a slam dunk,” Rheingold said.
Following up on the Mayo Clinic study, the U.S. Food and Drug Administration said it had found evidence that perhaps as many as one-third of those using the prescription medications may develop a rare form of heart-valve damage that could lead to weakening of the heart. At least three deaths have been linked to the drugs, the FDA said.
A spokeswoman for Wyeth-Ayerst, the marketer of both drugs and a division of New Jersey-based American Home Products, said the products were marketed “responsibly . . . according to FDA guidelines.” But the spokeswoman, Wyeth director of public relations Audrey Ashby, declined to comment on the pending lawsuits. The company has retained Washington’s Arnold & Porter, which defends product-liability cases for the tobacco industry, to represent it in court.
As the cases progress, one major issue will be the Watergate-era “Howard Baker question: ‘What did they know and when did they know it?’ ” said D.C. lawyer Victor Schwartz, an expert on the defense of tort cases. If the drug companies had a “reasonably full appreciation of the risks” and did not make disclosures to doctors, “this could be a big tort,” he said. “But if the full extent of the problems were not discovered until after the drugs were launched,” and the companies took reasonable actions to warn doctors at that time, “their liability will be more limited.”
The companies withdrew the drugs from the market after consultation with the FDA.
Another key issue will be how the companies marketed the drugs to the doctors who then prescribed them. For instance, plaintiffs’ lawyers argue that the drugs were meant to be taken for the short term and only by people who are “morbidly obese,” or twice the normal weight. Instead, they were prescribed long term for many people who were only slightly overweight, the lawyers argue.
Then there were the prescriptions for fen-phen, a drug combination never approved by the FDA. (The FDA did not recommend any action against phentermine, saying there was no evidence it was unsafe.)
There’s sure to be lots of finger-pointing by the companies and the doctors, each trying to place the blame on the other for any damages, according to plaintiffs’ lawyers.
For now, before the plaintiffs’ lawyers meet the drug companies on the front lines, they have their own battle brewing, this one over who will control the plaintiffs’ army and who will carry home the biggest share of the spoils.
This battle is between the lawyers who favor handling injury claims through class actions, which bring together large groups of claimants, and those who favor filing individual lawsuits for each alleged victim.
