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Like a long-expected storm, fen-phen hit Philadelphia late last month. Seven years after Wyeth Corp. pulled the diet drug from the market, and four years after a nationwide settlement was approved, there had only been eight trials. Now the deluge has begun. With thousands of lawsuits pending nationwide and more than 12,000 in Pennsylvania alone, results from the first two have arrived. (At press time, two more neared conclusion.) But if plaintiffs’ lawyers anticipated that the beginning of hurricane season was a harbinger that Wyeth was about to get pounded, so far the brunt has yet to touch land. Wyeth’s lawyers are clearly pleased. Plaintiffs’ lawyers counter that they haven’t been able to schedule their best cases and better days are ahead. The cases were tried in Philadelphia’s Court of Common Pleas. Plaintiffs from near and far chose it as a state court venue from which cases wouldn’t be removed to federal court, since Wyeth has a manufacturing plant nearby. Philadelphia courts also have long experience handling mass torts, such as asbestos. The completed trials featured two plaintiffs each. In the first, brought by Texas plaintiffs, the jury found that one had an injury, but it wasn’t caused by the drug ( Istnick v. Wyeth, No. 021200268). It awarded the second $48,000-less than the case cost the lead lawyer in expenses (Clepper v. Wyeth, No. 021202456). In the second suit, brought by Pennsylvania residents, one plaintiff was disqualified ( Cheatham v. Wyeth, No. 020704625), and the jury found the second had not been injured ( Cannon v. Wyeth, No. 021201534) . The two other cases involve five plaintiffs from Utah and four from Pennsylvania. They have taken longer to try because the first two used a reverse-bifurcated format-damages first, then liability-and neither went to a second phase. The other cases are not bifurcated and evidence is introduced in the traditional manner. Biggest case weakness The biggest weakness in the cases, according to David Gersch, lead defense lawyer in the first trial and a partner at Washington’s Arnold & Porter, “is [the plaintiffs] don’t have something wrong with them.” In the case Gersch tried, as is true of many of the 53,000 individuals who first joined the national settlement and later opted out and sued, the plaintiffs claimed to have mildly injured heart valves and sought compensation for future medical monitoring and pain and suffering. Under the settlement’s terms, they were allowed to opt out and sue as long as they don’t seek punitive damages; in turn, the company can’t raise a statute of limitations defense. In opening and closing statements, Gersch hammered at the plaintiffs for failing to seek diagnosis or treatment from personal physicians. “The plaintiffs put on this case entirely through the testimony of people who were hired by lawyers for this litigation,” Gersch told the jury during his closing. “And not one of them is the doctor of Ms. Istnick or Mr. Clepper.” James Morris, Henry Clepper’s lead lawyer, said his client’s disease wasn’t as severe as that of some of his clients, who number about 750 nationwide�about 250 of whom filed in Philadelphia. The schedule was set by the judges in the court’s Complex Litigation Center, and it’s based mainly on when cases were filed, he said. “And that’s why nobody should draw any broad conclusions about the validity of the opt-out cases based on these two,” said Morris, a partner at Beaumont, Texas’ Provost & Umphrey. A reasonable value of Clepper’s case, Morris said, was $100,000. It may take 18 months before the Philadelphia cases settle, Morris predicted. Wyeth doesn’t seem interested in negotiating until after lawyers have already poured too much into a case to turn back, he said. What makes settlement particularly difficult, he added, is that there is only one defendant. In asbestos cases there are often more than a dozen, and plaintiffs can settle with some to ensure a decent recovery before litigating against the others. Gersch is enthusiastic about the bifurcated format, which allows plaintiffs’ lawyers to introduce evidence of Wyeth’s liability only after a jury award. Though Morris’ co-counsel, Kip Petroff of Dallas’ Petroff & Associates, said the format makes it difficult to present a case in context, Gene Locks, a plaintiffs’ lawyer who has litigated many asbestos cases in Philadelphia, said he believes it will speed settlement by quickly establishing cases’ values.

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