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Houston plaintiffs lawyer George Fleming is trying to persuade a federal judge to disqualify the class counsel in the fen-phen class action multidistrict litigation, which was resolved with a settlement in 2000 when former manufacturer Wyeth set up a $3.75 billion trust to pay people who allegedly suffered injuries from taking the diet-drug combo. Fleming, a partner in Fleming & Associates, and 135 other plaintiffs lawyers across the country with fen-phen clients allege the class counsel aren’t doing an adequate job representing the 15,000 class members who chose to opt out of the settlement by May of this year to pursue individual suits in state courts. (Before the settlement, another 50,000 class members opted out of the MDL to file individuals suits in state courts.) Although those 15,000 plaintiffs — they are referred to in court documents as “intermediate opt-out plaintiffs” — took advantage of an opportunity to opt out of the settlement by May 2003, they remain members of the class. U.S. District Judge Harvey Bartle III of the Eastern District of Pennsylvania heard the motion filed on Aug. 6 by Fleming and the other plaintiffs lawyers. In their motion, the plaintiffs lawyers allege that the 11 lawyers serving as class counsel for the plaintiffs in the fen-phen class action, including Houston’s Charles Parker, are beholden to Wyeth, formerly American Home Products Corp., and are not watching out for the interests of the intermediate opt-out plaintiffs, who, instead of seeking a payment from the trust, opted out of the settlement because they prefer to have their claims heard by a jury. In the motion, Fleming and the other plaintiffs lawyers asked Bartle to discharge the class counsel. “Every time Wyeth has applied for a delay or restriction [to the rights of the opt-out plaintiffs], the class counsel has supported it. My clients, theoretically, are theirs. This should be a case of pure client loyalty, but their actions have shown that it is not,” Fleming alleges in an interview. Among the allegations outlined in the motion filed in Sheila Brown, et al. v. American Home Products Corp., the group of plaintiffs lawyers claims the class counsel testified in 2002 against 50 opt-out plaintiffs who wanted to have their claims heard together in state court in Louisiana, and they gave approval for Wyeth to audit all plaintiffs’ claims for money from the trust. But Michael Fishbein, a Philadelphia attorney who is lead counsel for the class, disputes allegations that the class counsel are advocates for Wyeth. “We have been very effective because we are looking out for the entire class,” says Fishbein, a partner in Levin Fishbein Sedran & Berman. Parker, a partner in Houston’s Hill, Parker & Roberson, says the class lawyers look out for class members with legitimate claims. He alleges that after Wyeth established the trust, many of the class members who applied for compensation from the trust did not have legitimate claims. “Any claim of impropriety or breach of duty on the part of class counsel is an unsupported affront to the integrity of those who have labored so diligently for the benefit of the class,” the class counsel argue in a response to the motion. “Fleming is saying that we should be concerned with certain individuals in their opt-out rights,” Parker says. “Our job is to protect the interest of the class and not any specific individual client without a legitimate claim.” Fleming disputes Parker’s assessment. He alleges the class counsel have operated as if the settlement with Wyeth trumps their duty to look out for individual intermediate opt-out plaintiffs. Class members must demonstrate damages caused by the drug to get paid from the trust. There are seven class counsel and four subclass counsel representing groups of class members with particular injuries. Besides Parker and Fishbein, the other nine counsel include lawyers from firms in Philadelphia, Cincinnati, Cleveland, New Orleans and Washington, D.C. Fleming and the other plaintiffs lawyers allege in the motion that the judge should have appointed a subclass counsel to represent the intermediate opt-out plaintiffs, but failed to do so. Because of that, the interests of the opt-out plaintiffs have not been met. Fleming disputes the allegation that the class counsel simply are trying to eliminate meritless claims to protect the entire class. “I don’t quarrel with anyone who says they are trying to rid the system of fraud. But the things they have done go against the best interest of the clients,” Fleming alleges. Producers stopped manufacturing fen-phen-containing products in 1997. More than 6 million people took the drug. Approximately 80,000 people agreed to the matrix settlement in 2000 and another 100,000 opted out early in the process. The 80,000 plaintiffs who agreed to the settlement in 2000 also had until May 3, 2003, to decide if they would stay in the settlement or opt out and try their luck with a jury. However, according to the 2000 settlement agreement, if those plaintiffs chose to take the most recent opt out — referred to in the settlement as an intermediate opt out — they would give up rights to seek punitive damages and be required to focus state court claims to specific physical injuries allegedly caused by the drug. Lowell Weiner, spokesman for Madison, N.J.-based Wyeth, declines to comment on the fight among the plaintiffs lawyers. Second Try Bartle denied a similar motion filed in July by Fleming and his colleagues alleging inadequate representation by the class counsel. In his ruling, Bartle suggested Fleming and the other plaintiffs lawyers were seeking a way around the ban on seeking punitive damages in state court suits. In his ruling on July 22 denying the earlier motion, Bartle wrote, “The pending motion is the latest in a series of efforts by certain lead movants to avoid the contractual limitations on damages in their lawsuits against Wyeth. These movants have previously engaged in a number of frontal assaults on the prohibition against punitive damages, each of which has failed.” But the motion Fleming and the group of plaintiffs lawyers argued on Aug. 6 questions why Bartle did not appoint a subclass counsel to represent the interests of the opt-out plaintiffs. Fleming argues the pending motion should be successful because it’s clear the opt-out plaintiffs are not represented by class counsel. “There is no mention of their interests being represented by class counsel,” the motion alleges. “Further, there is no evidence in the record that opt-out class members were contemplated at the time the nationwide class action settlement agreement with American Home Products Corporation was negotiated.” In addition, as alleged in the motion, opt-outs had no one to contact for clarification of their rights under the settlement and were not notified of the limitations on their right to seek punitive damages. “Class counsel would not assist opt-out class members, and stood by silently while the court concluded that it had the authority pursuant to its interpretation of the settlement agreement to substantially limit the causes of action and evidence that the intermediate class members could present in their state court cases,” Fleming and the other plaintiffs lawyers allege in the motion. “We believe that class counsel has become aligned with the interest of Wyeth,” alleges Patrick Kirby, a partner in Houston’s De Lange, Hudspeth, McConnell & Tibbets. Kirby is among the 136 plaintiffs lawyers who signed the July and August motions. But Parker is confident the current motion before Bartle will be met with the same response as the one filed in July. When Wyeth agreed to a final settlement in 2000, the company and class counsel expected fewer than 10,000 people to take the so-called matrix award in which a cash payment would be calculated on a complex grid to account for the nature and severity of any injuries or health factors allegedly related to taking fen-phen, Parker says. But it turned out that about 80,000 class members have filed claims alleging they are sick enough to receive settlement money. “We found there were allegations of fraudulent claimants by certain mass filers,” Parker says. “The court ordered a 100 percent audit of all claimants.” The audit is ongoing, Parker says. He says the trust already has awarded more than $1 billion and Wyeth has agreed to consider adding more money to the trust if legitimate claims warrant an increase. “Right now we are working with the trust to formulate a process to expedite legitimate claims,” Parker says. “We are in the process of weeding out those that are not [legitimate].” Fleming says he represents approximately 9,000 opt-out plaintiffs and about 1,000 who remain as part of the class. He says none of his 1,000 clients who filed claims with the trust has been paid. “This is the sorriest settlement I’ve ever been a part of,” Fleming alleges. “None of the promises to this class have been filled. There are people who want their benefits or who are trying to opt out to protect their rights. Class counsel is impeding them in favor of Wyeth.” Kelly Pedone wrote this article for Texas Lawyer , a Recorder affiliate based in Houston.

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