Jury Renders Defense Verdict in Diet Drug Case

Amaris Elliott-Engel

The Legal Intelligencer

A Philadelphia jury rendered a defense verdict in one of the last diet drug mass tort cases pending in the Court of Common Pleas.

Plaintiff Danny Crowder, of Eldorado, Texas, alleged in court papers in Crowder v. Wyeth that his wife Edna Faye Crowder's ingestion of diet drug Pondimin led to her death in February 2007 from primary pulmonary hypertension, or PPH.

Most diet drug cases were disposed of following a global settlement, said Stanley Thompson, the director of the Common Pleas' Complex Litigation Center. Thompson said the CLC has pending 56 cases with plaintiffs claiming that diet drugs caused them to have PPH, a progressive, incurable disease that causes life-threatening obstruction to blood vessels within the lungs.

Another diet drug trial is scheduled for January, he said. The number of diet drug cases has dropped from over 12,000 to less than 100.

Pondimin is also known by the generic name fenfluramine. Fen-phen was the nickname coined for the diet drug cocktail of fenfluramine and phentermine.

Pondimin/fenfluramine and another diet drug, Redux/dexfenfluramine, were pulled off the market in 1997 when researchers at the Mayo Clinic reported that women who took the fen-phen duo developed heart valve disease.

Many diet drug plaintiffs have been unable to prevail in the PPH-related actions because they haven't been able to prove they have PPH or there is an alternative cause for their health problems, according to Wyeth's July 11 motion for reverse bifurcation in the Crowder case.

The Crowder case was one of the individual diet drug cases still pending against Wyeth, which was formerly American Home Products, despite a November 1999 settlement valued at $3.75 billion.

The Legal Intelligencer reported in April that plaintiffs lawyers now estimate that the ultimate value of the settlement is $7.5 billion. The settlement allowed class members to opt at three different stages, and 60,000 to 70,000 opted out.

Judge Gary S. Glazer presided over the Crowder trial. The jury found in its Oct. 10 verdict that Danny Crowder hadn't proven by a preponderance of the evidence that his wife had developed PPH after using Pondimin.

In August, Glazer ruled that the trial should be reverse bifurcated, so that the first phase of the trial addressed if Edna Crowder had PPH, if her use of Pondimin caused the disease and if plaintiff was owed compensatory damages. The jury's defense verdict in the first phase precluded it from considering whether Wyeth negligently failed to provide physicians with adequate warnings regarding PPH and Pondimin.

Wyeth noted in its motion in support of bifurcation that almost all diet drug cases in Philadelphia have gone through the bifurcated trial process, and bifurcated trials take 6.5 trial days, instead of three to four weeks.

The plaintiff argued in their July 11 response that reverse bifurcation was used by the CLC to relieve the backlog of diet drug cases, and that reverse bifurcation wasn't necessary in this case when "there is no such backlog or anticipated flood of PPH cases." Danny Crowder also unsuccessfully argued that the issue of causation and damages in the first phase and the issue of liability in the second phase are intertwined.

In September, Judge Allan L. Tereshko, coordinating judge of the CLC, granted plaintiff's objections to Wyeth's arguments that the plaintiff's claims were federally pre-empted.

Wyeth unsuccessfully argued for summary judgment on the basis that the federal Food and Drug Administration's "close monitoring of the risk of PPH and approval of Wyeth's PPH warnings" would conflict with any potential finding for punitive damages under Pennsylvania state law, according to a Wyeth Aug. 12 reply memorandum of law. Wyeth said compensatory damages might be allowable.

Pennsylvania courts can't impose punitive damages for alleged failures in a pharmaceutical company's duty to warn of risks with its drugs that were prescribed in another state, Wyeth said. Punitive damages weren't allowable in the Crowder case, Wyeth argued in its papers, because Texas has barred punitive damages when an FDA-approved warning is provided with a drug.

NO 'SELECTIVE APPLICATION'

Plaintiff retorted in an opposition memorandum that federal law doesn't selectively apply to punitive damages but not to compensatory damages.

Plaintiff said that U.S. Supreme Court has announced in recent decisions that a state court can't impose punishment on a defendant for having harmed nonplaintiff third parties in states "where the defendant's conduct toward those third-parties was not wrongful or unlawful." But that limited principle doesn't mean that no state court may impose punitive damages on a defendant unless the defendant's wrongful acts were committed in the state where the lawsuit is pending, the brief said.

Tereshko also granted Wyeth's motion to shut down Danny Crowder's punitive damages claims in September. He also dismissed plaintiff's breach of express warranty and fraud claims.

Plaintiffs attorney Shelley Hutson of the Hutson Law Firm in Houston, who made the opening and closing arguments in Crowder, was not available Thursday. Plaintiffs attorney Riley Burnett of Clark Dean & Burnett in Houston said plaintiffs will appeal the verdict.

"Her premature death was a tragedy," Burnett said. "While we respect the jury's decision, it's our strong belief she died from taking Pondimin." Plaintiffs attorneys from Burnett's firm also include Roberta J. Karp and Christopher Dean. Benjamin P. Shein, of the Shein Law Center in Philadelphia, said he served only as local co-counsel to help the Texas attorneys in jury selection and in arguing some motions.

Hutson said in her opening argument that Edna Crowder quit smoking in 1990 and she took Pondimin for three to five months in 1996 to help her lose the weight she gained after quitting smoking, according to a transcript.

Hutson argued that because of the progressiveness of primary pulmonary hypertension "it's very patient-specific how long it takes until you have symptoms and how long it takes until the disease is so bad that it shows up on an echocardiogram."

Robert A. Nicholas, Tracy G. Weiss and Michael King of Reed Smith and M. Sean Laane and Matthew J. Douglas of Arnold & Porter in Washington, D.C., represented Wyeth during the trial. Nicholas made opening and closing arguments.

Nicholas said in his opening statement that it was more likely that Edna Crowder died because of the lung disease chronic obstructive pulmonary disease because of her family history of COPD and because she had smoked several packs of cigarettes a day for 25 years.

Nicholas also said Edna Crowder was morbidly obese, didn't use her sleep apnea machine as directed and drank multiple beers several times a week.

In a statement, Wyeth said while Edna Crowder's death was tragic, medical evidence demonstrated her health problems were unrelated to diet drugs.