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The $3.75 billion settlement of the fen-phen diet drug class action — once hailed as a brilliant solution to the vexing problem of getting courts to approve massive settlements — is now mired in ugly disputes over whether plaintiffs’ lawyers are draining the fund by persuading doctors to exaggerate their clients’ injuries. Last week, leading lawyers asked U.S. District Judge Harvey Bartle III of the Eastern District of Pennsylvania to order an “emergency suspension” of all claims processing, and to reconfigure the entire process so that all future claims of actual heart valve damage will be audited. They also asked Bartle to permanently bar two New York law firms and two doctors from submitting any claims, saying the evidence shows that they were effectively running a “production line” that resulted in hundreds of “medically unreasonable” claims. But now the plaintiffs’ lawyers are striking back, arguing that Wyeth (the successor to fen-phen manufacturer American Home Products) is trying to “rewrite” the settlement and is irresponsibly tarnishing the names of lawyers and doctors with accusations of fraud that it simply hasn’t and can’t back up with any evidence. Judge Bartle has temporarily frozen all payments to any client of the two New York firms — Napoli Kaiser Bern & Associates and Hariton & D’Angelo — or to any claimant whose echocardiogram was read by either of two doctors — Linda Crouse and Richard Mueller — pending the outcome of a 10-day hearing. In briefs filed last week in In re Diet Drugs, lawyers for the settlement trust — Andrew A. Chirls and Abbe F. Fletman of Wolf, Block, Schorr and Solis-Cohen — argued that the evidence at the recent hearing proved that the Hariton and Napoli firms have “submitted hundreds of medically unreasonable claims.” But in a joint brief filed this week, a team of lawyers representing the two New York firms argues that the evidence of any fraud was utterly lacking and that the real motive behind the latest moves is to “kill” the settlement. “This motion … is not about doctors or lawyers; it is about victims of Wyeth’s dangerous drugs that the FDA ordered off the market,” wrote attorneys Abraham C. Reich and Gregory B. Williams of Fox, Rothschild, O’Brien & Frankel (for the Hariton firm) and Gerard E. Harper, Jeh C. Johnson and Eric Alan Stone of Paul, Weiss, Rifkind, Wharton & Garrison (for the Napoli firm). In the brief, the plaintiffs’ lawyers argue that Wyeth and the settlement trust are trying to take back many of the key concessions made in the settlement. “Rather than face a jury trial on the damages sustained (or to be sustained) by the many millions of people who ingested these defective drugs, Wyeth settled. In that settlement, in addition to foregoing any right to challenge whether its drugs caused heart disease, Wyeth forfeited the right to contest (1) what constitutes valvular heart disease, (2) how cardiologists are to determine whether Fen-Phen users have valvular heart disease, and (3) subject only to an audit program, whether a reasonable medical basis exists for particular cardiologist to have concluded that a Fen-Phen user has valvular heart disease as defined in the Settlement Agreement,” they wrote. “Now Wyeth wants all those rights back,” the brief says. In the brief, the Fox Rothschild and Paul Weiss lawyers urge Bartle to see the accusations lodged against their clients as “reckless.” They also argue that the move by Wyeth to ask for modifications of the settlement — most notably the move to a 100 percent audit of all injury claims — is proof that the two New York firms are not unique. Instead, they argue, it shows that Wyeth and the trust are simply unhappy with the settlement terms. “In that extraordinary motion, using its longtime paid consultant, Wyeth now insists that thousands of claims involving hundreds of law firms and scores of cardiologists are bogus — including, by our count, at least half of those submitted by lawyers on the Plaintiffs’ Management Committee,” the brief says. “That motion, which seeks to kill the settlement agreement, exposes this motion [to bar the Hariton and Napoli firms] as a mere stalking-horse,” the brief says. The Hariton and Napoli lawyers complain in the brief that payments due to 88 of their clients whose cases were the focus of the hearing have been unfairly put on hold along with other clients of their firms “about whose conditions this court heard not a word of evidence.” Halting the payments is unfair, they argue, because Wyeth and the settlement trust failed to prove anything approaching fraud. Instead, they argue, the hearing boiled down to disagreements among doctors about how to read echocardiograms. But while Wyeth and the trust criticize the plaintiffs’ doctors for reading a huge volume of tests in a short time, the New York firms argue that the expert witnesses called to the stand to lodge those criticisms were hypocrites since they themselves reviewed the suspected doctors’ work in just as short a time. “This court should order all these claims to be instantly paid because movants failed to carry their burden of proof. They failed to prove that the claims lack a reasonable medical basis or are the product of fraud,” the brief says. The “whole case,” the brief says, is premised on a faulty syllogism. As Wyeth and the trust see it, the brief says, “since its two allegedly independent experts disagreed with so many of the interpretations that Drs. Crouse and Mueller made, some systemic explanation must exist to explain the wide divergence of views. “On movants’ view, that systemic explanation can only be a dark one: Distinguished cardiologists forfeited their integrity for the dollars they received for interpreting the echocardiograms.” In fact, the brief says, the evidence showed that the disparity of views among the doctors was actually based on disagreements about what the settlement agreement requires. “One set of experts wants echocardiograms conducted and interpreted in a particular way, while Drs. Crouse and Mueller conducted and interpreted echocardiograms in a way the [settlement form] dictates,” the brief says.

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