Even in a nation obsessed with weight loss, there’s never been anything quite like fen-phen. It was a set of magic pills from the wizards of Big Pharma: a prescription cocktail that promised to suppress appetite and promote weight loss, easily and safely. Fen-phen’s pledge: no pain, and no gain.
Even in a nation obsessed with litigation, there’s never been anything quite like fen-phen. After reports that the wildly popular diet drug caused damage to heart valves, American Home Products, now Wyeth, pulled its two fen-phen products off the market and girded itself for an assault by the plaintiffs bar. Eight years later, the litigation continues. Wyeth has already shelled out almost $14 billion, and just last month boosted its diet drug reserves again, bringing the total of what the company expects the diet drug litigation to cost all the way to $21 billion.
But it’s not the cost of the litigation that makes fen-phen so remarkable and disturbing a story. It’s where the money went. The court records of the global class action by which Wyeth attempted to resolve its fen-phen problems are a veritable catalogue of ignominy. Law firms allegedly attempting to fleece a lawyer-built victims trust fund. Doctors working for contingency fees, filing questionable supporting reports. Corporate executives, facing the prospect of ruin, hurling money at claimants. The fen-phen class action approved in 2000 was supposed to be a new paradigm of how to resolve a mass tort equitably. Instead the iron law of unintended consequences has ruled. Misconduct has not been punished, but rewarded. Some uninjured people have been paid to go away while thousands of claimants alleging real injuries still wait for compensation.
The fen-phen litigation may at last be nearing an end, thanks to a January hearing to salvage the class action and fevered negotiations to settle the remaining cases in the courts. Its influence will continue to resound, however. What happened in fen-phen can be summed up as a series of mistakes, some made in good faith, others not. It began with AHP’s decision to sell Pondimin and Redux as a prescription panacea for overweight Americans and continued with an effort to resolve Wyeth’s liability that ended up bringing the civil justice system itself into disrepute. This isn’t just an academic or abstract policy matter. Legitimate mass tort cases continue to make their way into and through the courts. Fen-phen’s sorry story provides, if nothing else, a guide for how these cases should not be handled.
Wyeth was in big trouble in 1998 when the fen-phen litigation began. It was responsible for two medications, Pondimin and Redux, that, taken in combination with a third drug, were known as fen-phen. The combination was widely prescribed as an appetite suppressant until July 1997, when doctors at the Mayo Clinic announced that they’d discovered an association between diet drugs and heart valve disease. A couple of months later, at the request of the Food and Drug Administration, Wyeth withdrew Pondimin and Redux from the market.
Inevitably, litigation followed, particularly as more studies confirmed an association between the drugs and heart valve damage. By 1999 Wyeth faced almost 20,000 personal injury suits in state and federal courts and more than 100 putative class actions, some of which were moving quickly toward certification. The first two fen-phen cases to go to trial were disasters for Wyeth. One settled after several plaintiffs in Mississippi won more than $100 million in compensatory damages. In the other, Dallas lawyer Kip Petroff won a $23 million verdict, including punitive damages.
Wyeth desperately wanted to devise a means of setting an outside limit on what fen-phen would cost the company. Even if that outside limit was a huge number-something like 6 million people had taken Pondimin or Redux-Wyeth believed that its survival depended on certainty. To find it, Wyeth turned to Peter Zimroth, an intense and brilliant Arnold & Porter partner. In April 1999 he began meeting with a plaintiffs negotiating committee eventually led by Michael Fishbein, a cheerful veteran class action lawyer from Levin, Fishbein, Sedran & Berman in Philadelphia, where all the fen-phen cases in federal court had been consolidated for discovery. Wyeth’s oft-stated goal was “global resolution,” a vehicle that would in effect cap the litigation.
Negotiations took place under the shadow of Amchem Products, Inc. v. Windsor, the 1997 case in which the U.S. Supreme Court struck down an asbestos personal injury class action settlement. Amchem failed because the Supreme Court was concerned with the rights of plaintiffs who didn’t yet realize, because of the long latency of asbestos-related diseases, how badly, or even whether, they’d been injured by asbestos exposure. But fen-phen wasn’t like asbestos. Wyeth’s diet drugs were associated with a limited range of health problems, all with relatively short latency periods. Zimroth, Fishbein, and the other lawyers negotiating the fen-phen deal believed that as long as they were careful to provide plaintiffs the right to reject the class action in favor of individual suits, the class action could win court approval.
At first, the benefits for Wyeth of a class action seemed compelling. For one thing, by requiring diet drug users to register claims by a certain date, the class action defined the universe of plaintiffs. It also gave Wyeth a means to handle claims from beginning to end. Some of the fen-phen class actions that had already been filed against Wyeth called for the company to establish medical monitoring for Redux and Pondimin users, in which Wyeth would pay for claimants’ echocardiograms. (Echocardiography-basically a sonogram of the heart-is the technique doctors use to diagnose the heart valve damage associated with the drugs.) Wyeth considered medical monitoring to amount to free case screening for plaintiffs lawyers, and instead insisted on what plaintiffs negotiator Fishbein calls “cradle-to-grave” resolution: Victims identified through screening offered within the class action would proceed to resolve their claims via the class’s trust fund.
Finally, the class action appeared to mitigate Wyeth’s nightmare prospect of runaway punitive damages-as long as relatively few victims opted out of the class. Wyeth couldn’t curtail the rights of people who rejected the class action outright. They could still sue for punitive damages. But people who didn’t opt out of the class at the first stage-even if they later decided to sue Wyeth in the courts-were barred from seeking punitives. Wyeth gave diet drug users a very good reason to stay in the class: It conceded the fight over causation. Claimants who stayed in the class wouldn’t have to prove, as they would in court, that Pondimin or Redux had caused their heart valve damage, only that they had heart valve damage and had taken the drugs.
Wyeth was also offering generous compensation to class members. The settlement established five levels of injury and two payment schedules, one for long-term fen-phen users and the other, a percentage of the first, for people who’d taken the drugs for less than two months or had alternate medical explanations for their disease. At the high end of the full payment matrix were victims whose heart valve damage was so severe that they’d had strokes, died, or required heart transplants. Depending on their age, those Level V victims could receive upwards of $1.3 million. At the low end of the partial payment matrix was about $7,500 to Level I claimants, whose echocardiograms showed evidence of significant valve damage but no other indicators of serious heart disease.
Wyeth agreed to provide up to $2.55 billion for claimants who qualified for the payment matrix. The company also said it would put up $1 billion to pay smaller cash benefits or provide medical services to other Pondimin and Redux users with less severe valve damage.
After Zimroth, Fishbein, and the other negotiators agreed on a basic structure, Fishbein made the rounds of plaintiffs lawyers, selling the proposed settlement. The reaction, he says, was enthusiastic, but with a caveat: The process wouldn’t work efficiently, plaintiffs lawyers told Fishbein, if every claimant had to be screened by the trust. The settlement should instead permit diet drug users to see qualified doctors for echocardiograms, and then submit claims based on their doctors’ certifications.
Wyeth agreed, and so the settlement approved by the court on August 28, 2000, was based on what Zimroth and Fishbein have called a “medical model.” To receive payments from the trust, claimants would submit echocardiograms conducted under the supervision of a qualified physician, along with special forms (known in the class action as “green forms”) in which their cardiologists would attest to their medical condition.
Fishbein and Zimroth didn’t know it until much later, but in agreeing to the medical model, they had made a big mistake. “[In] the model we thought we were working on,” says Zimroth, “you’d have a person who was sick go to the doctor, who would take an echocardiogram. Then, if warranted, the person would be referred to a cardiologist. Those cardiologists were supposed to be filling out the green forms. We all believed it would be done in an honest way, that doctors would not endanger the health of their patients by making phony diagnoses.”
Says Fishbein: “I guess we were naive.”
They were naive. Wyeth, meanwhile, was terrified. Despite the company’s best efforts, 50,000 victims opted out of the class action altogether. That meant 50,000 potential punitive damage verdicts, a frightening scenario, given the results of the two fen-phen trials that had gone to verdict in 1999, after Zimroth had started negotiating the class action settlement. In one, an Oregon case tried by James Doyle of Houston’s Fleming & Associates, Wyeth lost a $29.2 million verdict. In the other, tried by Texas plaintiffs lawyer Tony Martinez, Wyeth was hit with more than $50 million. Both verdicts included big punitive damage components. Even if Wyeth tried and won most of the 50,000 opt-out cases, it could be crippled by punitive damages in the cases it lost. “No company could handle $15 million, $20 million punitive damage verdicts for 20,000 people,” says Wyeth counsel Orran Brown of Richmond’s BrownGreer, who later served as Wyeth’s liaison to the fen-phen trust.
So Wyeth’s outside counsel were instructed to settle the initial opt-out cases quickly, spending billions of dollars of the company’s money to do it. “It was a feeding frenzy like I’ve never seen,” says class counsel Fishbein. “They were settling everything in sight for huge amounts of money.” Wyeth hardly paused to consider the strength of individual cases, settling enormous inventories of cases in mass agreements with plaintiffs firms. One firm, New York’s Napoli, Kaiser & Bern, settled no fewer than 5,600 of those first-round opt-out fen-phen cases.
Wyeth’s motive-perfectly justifiable, from a business standpoint-was to circumscribe the litigation, to erect a fence around its potential liability. But Fishbein maintains that the company’s pell-mell settlements sent a dangerous signal to the plaintiffs bar. Wyeth’s generous payouts for thousands of marginal cases, he says, gave plaintiffs lawyers the sense that fen-phen suits were easy money. The class action settlement included only weak safeguards against illegitimate claims, relying on just the good faith of cardiologists and audits of a random sampling of 15 percent of claims submitted to the trust. Wyeth’s policies in the first round of opt-out settlements, according to Fishbein, reinforced the low risk and potentially big rewards of filing dubious claims.
And so the class action drew claimants like ants to a picnic. In the negotiations that produced the settlement, Zimroth and Fishbein had relied on statistical modeling to predict the number of people likely to make claims on the class’s $2.55 billion trust fund. One of the key assumptions of the model was the expected participation rate of diet drug users in the settlement-but that assumption didn’t account for the millions of dollars that plaintiffs lawyers spent on advertising to sign up fen-phen clients by the thousands. At least one law firm, New York’s Hariton & D’Angelo, was founded in July 2001 solely to find and prosecute fen-phen claims. It employed a medical staff of more than 60 nurses and sonographers, who used the firm’s own echocardiogram equipment to test diet drug users. “The class action,” says plaintiffs lawyer Edward Blizzard, who has been involved in the litigation since early 1998, “had the effect of drawing cases out of the woodwork.”
Claims poured in to the trust. At the fairness hearing on the initial class action settlement, Zimroth and Fishbein had presented experts who predicted that a maximum of 8,345 people would qualify for full payments from the trust. (People with serious heart valve damage received full payments if they could show that they’d taken Pondimin or Redux for more than 61 days and had no other medical conditions to explain their disease.) Another 27,227 might qualify for partial payments, the model predicted. About 35,000 people in all would claim injuries severe enough to collect payments from the $2.55 billion fund, according to the model.
But beginning in the summer of 2002, the trust began to receive claims out of all proportion to expectation. At the rate claims were arriving, the trust anticipated that between 75,000 and 85,000 fen-phen users would demand payment through the class action by the cutoff date of May 2003. And that created a serious problem. Payments from the trust were averaging about $400,000. At that level of payment, with the number of claims the trust faced, $2.55 billion wouldn’t be nearly enough. The deficit would be more than $10 billion.
Wyeth had been monitoring the trust closely since its establishment. Claims processing had never run as efficiently as Wyeth or plaintiffs lawyers wanted, but before the summer of 2002 the trust seemed to be functioning fairly well. Almost half a million users of Pondimin or Redux received screening echocardiograms, with the trust picking up the $300 million tab. Trust administrators paid out nearly $1 billion to claimants whose echocardiograms and cardiologist-signed green forms indicated that they qualified for benefits.
Wyeth, however, had noticed what it considered to be troubling anomalies in the pattern of claims filed with the trust. One problem was the type of disease people claimed. The heart has two sorts of valves, aortic and mitral. The science linking aortic valve damage to diet drugs was stronger than the proof of a link to mitral valve damage, a much more common condition among overweight people generally. Aortic valve damage is relatively rare, so the trust’s prediction model anticipated that cardiologists would be likely to attribute the condition to diet drugs, and thus the trust would see more aortic valve damage claims than claims of mitral heart valve damage. In fact, mitral claims vastly exceeded aortic claims.
Moreover people were claiming to qualify for Level II benefits at a wholly unanticipated rate. Level II benefits in the trust fund, averaging almost $500,000, required not only an echocardiogram showing serious heart valve damage, but also evidence of a complicating factor that could lead to advanced heart disease. The most common complicating factors were an oversize left atrial chamber, which indicated that the heart was working harder than normal to pump blood because of the faulty valve; or a reduced volume of blood leaving the ventricle chamber. Wyeth had expected relatively few people to show these ominous indicators, yet tens of thousands submitted echocardiograms and green forms claiming them.
Under the settlement agreement, Wyeth had the right to ask its own doctors to review claimants’ echocardiograms. Wyeth-paid cardiologists began raising questions about some of the tapes they reviewed, particularly tapes sent by claimants whose law firms were high-volume filers. The echocardiograms were sometimes fuzzy, which made measurements of the left atrial chamber-critical for big-money Level II claims-difficult to pinpoint. And some of the work seemed suspicious: Why, Wyeth doctors asked, were transducers sometimes positioned strangely on patients’ chests? Why were dials on echocardiograph machines sometimes set in a way that appeared to exaggerate the severity of patients’ disease? Wyeth’s lawyers started to wonder if plaintiffs lawyers had figured out how to game the system, deliberately enhancing their clients’ claims through manipulated echocardiograms. “We kept pushing the trust [auditors] to look at the tapes and green forms,” says Wyeth counsel Brown. “We realized you can make [the level of disease] look worse than it is.”
In the summer of 2002 a purported whistle-blower-a registered nurse briefly employed by Napoli, Kaiser & Bern and Hariton & D’Angelo-contacted the fen-phen trust. He claimed that remarks he’d overheard at a training session suggested the firms were behaving improperly. With the trust on the verge of paying out nearly $50 million to about 120 clients of those two firms, trust counsel Andrew Chirls of Philadelphia’s Wolf, Block, Schorr & Solis-Cohen asked Judge Harvey Bartle III of the Eastern District of Pennsylvania for a hearing.
After doubts arose about the whistle-blower’s credibility, trust lawyers concentrated on reviewing claims filed by clients of the two firms. They found scores of clients’ green forms to have been filled out by two cardiologists, Dr. Linda Crouse of Kansas and Dr. Richard Mueller of New York. The trust hired its own expert cardiologist to scrutinize echocardiograms submitted by the two doctors. When his review was complete, the trust concluded that only seven of the claims it was scheduled to pay to Napoli and Hariton clients actually deserved to be paid. Instead of $50 million, firm clients should receive only $3.2 million.
Judge Bartle’s six-day hearing on 78 disputed Napoli and Hariton claims in September 2002 produced some troubling evidence. Dr. Mueller, it turned out, was working on contingency for the Hariton firm; he received an extra $1,500 whenever a claimant he’d evaluated submitted a green form to the trust. And Dr. Crouse was running what Judge Bartle called “a mass production operation that would have been the envy of Henry Ford.” Crouse evaluated 725 echocardiograms, at $1,000 each, for the Napoli and Hariton firms. (She also reviewed another 10,000 echocardiograms for a different law firm consortium.) Her practice’s lead sonographer received training from a Hariton employee, and someone from one of the firms was usually present during echocardiography sessions.
Crouse testified that she generally spent only about two or three minutes looking over these echocardiograms. And she usually approved them for submission to the trust: Crouse found that the echocardiograms of 60-70 percent of the Napoli and Hariton clients her office tested exhibited disease sufficient to qualify them for payments from the trust-compared to the 5 percent she found in a blinded clinical study in 1998. When Crouse signed a green form to be sent to the trust, according to Judge Bartle, it was without reviewing the patient’s medical records, without taking a medical history, and often without even completing the form herself.
Marc Bern of the Napoli firm says that his firm has never manipulated claims. It always strictly followed the procedures delineated in the class action settlement agreement, he says. That is, the clients’ echocardiograms were produced in doctors’ offices, by 100 independent physicians, and in accordance with the trust’s criteria. The true problem with the class action, Bern says, was the settlement agreement’s drastic underestimation of the mitral valve damage attributable to fen-phen. His firm engaged an expert epidemiologist who estimated that instead of the 800 Level II claims anticipated by the class action settlement, some 50,000 people would be eligible for Level II payments. Bern maintains that the trust changed the rules for echocardiograms only because it realized how severely the class action had underestimated claims, making his firm the unfortunate target of those changing criteria. Says Bern: “We have always believed we did everything appropriately, in accordance with the [class action] settlement.”
Mario D’Angelo of the Hariton firm did not return calls seeking comment. He has filed letters with Judge Bartle stating that the state grievance committee to which Bartle referred the matter of Dr. Mueller’s contingency fees found no breach of the New York Code of Professional Responsibility. Dr. Crouse countersued the trust after it sued her for fraud. Her countersuit maintains that she always followed the standards of the settlement agreement and her profession in fen-phen matters, and that the trust’s expert had been wrong when he discredited her echocardiograms.
Despite the defense mounted by the Napoli and Hariton firms at the September 2002 hearing, Judge Bartle was distressed by what he heard. On November 14, 2002, he ordered the trust to withhold payment to the 78 Napoli and Hariton clients until those clients submitted documentation from new doctors. He also authorized the trust to audit each of the thousands of echocardiograms and green forms submitted by Crouse and Mueller, as well as the claims of every Napoli and Hariton client. Two weeks later Judge Bartle expanded the order: Every claim for significant damages could be audited by the trust. “The claims simply do not mesh with the legitimate expectations of the court and the parties,” he wrote. “Common sense compels the conclusion that something may be seriously amiss.”
he trust’s new audit-everything policy turned up evidence of the industry that the fen-phen litigation had spawned. Trust counsel Chirls hired Richard Scheff of Philadelphia’s Montgomery, McCracken, Walker & Rhoads to act as special counsel for the trust. Scheff, a former federal prosecutor who specializes in white-collar criminal defense and corporate investigations, says he had never before encountered anything like the shenanigans in the fen-phen litigation. “I was stunned,” he says. “Stunned. Truly, truly stunned.”
Some law firms were holding mass echocardiograph sessions in law offices and hotel rooms. Entire companies, derisively termed “echo mills,” had sprung up simply to offer echocardiograms to fen-phen users; one such company, EchoMotion Diagnostics Network Inc., used mobile echocardiograph machines and teams of traveling sonographers to perform some 60,000 screenings on patients whose medical records were immediately turned over to law firms. One lawyer-Kip Petroff, the Dallas attorney who won an early fen-phen verdict against Wyeth-even set up a subsidiary, Petroff Echo Techs, to screen fen-phen clients.
Such mass processing, lawyers for Wyeth and the trust came to believe, was producing illegitimate claims. In March 2004 Wyeth asked Judge Bartle to halt payments by the trust. Auditors had by then reviewed 4,600 claims, and had disqualified almost two-thirds of them. Almost 50 law firms, all of them high-volume filers in the trust, had more than half of their claims rejected [see "High Volume, Low Success," page 97]. Wyeth counsel Zimroth described the trust’s audit results as evidence of “widespread corruption.” Even class counsel Fishbein, now placed in the peculiar and uncomfortable position of a plaintiffs lawyer forced to suspect his brethren, admitted that the medical model he had envisioned had instead become an echocardiogram production line.
The all-audit policy, meanwhile, wreaked havoc in the trust. Trust counsel Chirls and Scheff, insisting that they had a fiduciary obligation to protect legitimate claimants, moved to disqualify echocardiograms submitted by EchoMotion, Petroff & Associates, and the Houston firm of Fleming & Associates, and requested discovery on 14 additional law firms. Predictably, the lawyers struck back with more litigation. Says Petroff, who, thanks to referral contracts with more than 100 other law firms, has more than 12,000 claims pending in the trust: “The allegations about me and the people I work with are completely absurd.” He and Doyle of the Fleming firm both maintain that their clients’ echocardiograms were produced under proper medical supervision. “There’s nothing wrong with echos done in hotel rooms,” Petroff says. “It’s absurd to say that where the echo is done has an effect on the quality of the echo.”
But consumed with suspicion, the trust virtually ceased payments. Forty thousand claims waited to be audited, at a cost of $5,000 per audit. Plaintiffs lawyers screamed that the trust’s audit process was unfairly denying compensation to legitimate claimants in order to shield Wyeth from accusations that its $2.55 billion wasn’t enough. Like Bern of the Napoli firm, many plaintiffs lawyers blamed the medical criteria specified in the original settlement, not corruption in their ranks, for the influx of Level II claims. Thousands of claimaints opted out of the class action, leaving Wyeth with a docket of 50,000 more fen-phen cases in the courts.
In an attempt to salvage the class action, Fishbein began meeting in 2003 with a pragmatic group of plaintiffs lawyers, including Wayne Spivey of Philadelphia’s Shrager, Spivey & Sachs, Ellen Presby of Baron & Budd, and Doyle of Fleming & Associates, to discuss what he called “a resettlement of the settlement.” The problem was not the victims with the highest-level damage claims, who obviously weren’t faking heart surgery. It was the Level I and Level II claimants: people whose echocardiograms might have been manipulated to show more serious disease than truly existed. Without the tens of thousands of lower-level claims, the original trust would have enough to pay everyone else.
In the fall of 2003, Wyeth counsel Zimroth and Brown joined the talks that ultimately produced what’s known as the Seventh Amendment to the original settlement agreement. Under the Seventh Amendment, which was the subject of a fairness hearing before Judge Bartle in January, Level I and Level II claimants will be transferred out of the old trust and into a new $1.275 billion fund, which will have its own medical review process. All of the claimants who pass the review will divide the $1.275 billion on a pro rata basis.
Still searching for an end to the litigation, Wyeth counsel Zimroth has also engaged in negotiations with the lawyers handling the 50,000 opt-out cases. Without the threat of punitive damages-and furious to see in court some of the same lawyers, doctors, and echo mills that, in its view, had corrupted the class action-Wyeth has taken a much harder line in these cases than it did in the quickly settled first round of opt-out suits. Zimroth fought to keep cases out of unfriendly state courts, and in several cases Wyeth has proceeded to trial and won defense verdicts. Zimroth has so far reached agreements with lawyers representing at least 10,000 opt-out plaintiffs.
Wyeth in-house lawyers did not respond to requests for comment, but outside counsel Orran Brown says the company continues to consider the fen-phen class action settlement a success. It’s not an unreasonable position. Even with portable echo mills in hotel rooms and doctors who didn’t meet patients and lawyers training sonographers how to set echocardiograph dials for maximum effect, Wyeth only had to pony up an extra $1.275 billion to cap its fen-phen liability in the class action-an enormous sum by most scales, but little more than a nuisance by diet drug litigation standards. All of those aggressive motions against suspect doctors and lawyers will likely be dismissed if Judge Bartle, as expected, grants final approval to the Seventh Amendment. Scheff, the special trust counsel who filed them, points out that businesses have every right to use money to make a problem go away. “Wyeth recognizes that in the process, claims that are completely illegal may get paid,” he says.
But that’s not justice, which is why the fen-phen litigation will long be remembered as a mass tort debacle. Consider the findings of a 2004 audit conducted by a panel of cardiologists led by Dr. Joseph Kisslo of Duke University in the fen-phen class action. Hired by class counsel to review 926 claims that had already passed the trust audit process, Kisslo and his colleagues spent hours analyzing echocardiograms. About 70 percent of them, Kisslo’s group concluded, should not have been approved by auditors.
“We found serious, repeated, and verifiable alterations of systems controls to consistently exaggerate [the seriousness of disease],” Kisslo swore in an affidavit. Even worse than manipulation of the echocardiograph machines, the Kisslo team found rogue frames inserted into the echos of 84 patients. All of the inserted frames had the effect of exaggerating the patients’ heart damage. “I cannot conceive of any legitimate reason to use such a practice clinically,” Kisslo stated. “These rogue inserts are unacceptable physiologically, scientifically, clinically, and otherwise.”
Most disturbing was the effect of the apparent deception on real victims. Kisslo’s panel found that in 50 cases claiming mitral valve damage, the patients had actually suffered moderate or severe aortic valve damage that had gone undiagnosed. And in one horrifying case, a patient whose condition was overstated for the sake of obtaining payment through the trust ended up having unnecessary heart valve replacement surgery.
Class counsel Fishbein says the ultimate lesson of the fen-phen litigation may be the peril of attempting such a grand-scale class action settlement. A standard of proof low enough to produce efficiency, coupled with compensation high enough to keep plaintiffs in the class, seems to create “a huge incentive to push [dubious] claims,” Fishbein says. “I wouldn’t think a defendant would want to do it.” Building safeguards and audits into the system, Fishbein says, removes the efficiency that makes the class action economically attractive for defendants. “The class mechanism becomes less effective than the tort system,” he says.
As pharmaceutical mass torts involving Vioxx and Celebrex ripen, Merck & Co., Inc., and Pfizer Inc. would do well to remember Fishbein’s hard-earned wisdom. That, and the story of the patient who underwent unnecessary heart surgery. Justice demands a different approach.