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In a strongly worded opinion that questioned the ethics of two law firms and two doctors, the federal judge who is overseeing the $3.75 billion fen-phen diet drug class action settlement has found that dozens of claims of heart-valve damage were “medically unreasonable” and that the doctors and lawyers responsible for the bogus claims must now be watched more closely. U.S. District Judge Harvey Bartle III said he was forced to issue an injunction because the settlement funds were set aside for “rightful claimants who suffered from fen-phen and not as a pot of gold for lawyers, physicians and non-qualifying claimants.” The ruling is a significant victory for the team of lawyers who represent the settlement trust — Andrew A. Chirls and Abbe F. Fletman of Wolf Block Schorr & Solis-Cohen — who argued that the settlement fund is being rapidly depleted by a “deluge” of exaggerated claims. Chirls and Fletman focused on two New York law firms — Napoli Kaiser Bern & Associates and Hariton & D’Angelo — and said the claims submitted by their clients included a shockingly high percentage of claims for hefty benefits. Prior to the settlement, they said, statistics showed that only about 10 to 11 percent of fen-phen users would test positive for heart valve abnormalities. But the clients of the two New York firms were testing positive at a rate of 60 to 70 percent, they said. Fletman took the lead in a recent six-day hearing that focused on 78 claims. She argued that an unbiased doctor had reviewed them all and found that none of the diagnoses was medically reasonable. Bartle agreed, saying he found Fletman’s expert witness, Dr. John Dent, to be “extremely well qualified,” and that he accepted completely Dent’s conclusions about the medical unreasonableness of the readings. As a result, Bartle ordered that 78 claims submitted by the clients of two New York law firms “shall not” be paid. But Bartle also said those same claimants have the right to resubmit their claims if they get new doctors — anyone other than Dr. Linda J. Crouse or Dr. Richard L. Mueller — to conduct an echocardiogram and complete their claims form. Some of the harshest criticism in Bartle’s opinion was levied on Crouse who was paid $725,000 by the Hariton and Napoli firms for reading 725 echocardiograms and $2 million from other law firms for similar work. “When considering the thousands of echocardiograms that Dr. Crouse interpreted during the period that she worked for the Hariton and Napoli firms, her practice resembled a mass production operation that would have been the envy of Henry Ford,” Bartle wrote. Bartle found that Crouse had improperly relied on law firm employees to instruct her staff on how to interpret the echocardiograms, and that she “spent little time actually reviewing and approving the results.” He also found that Crouse “never met with the claimants, never reviewed their medical records, and largely relied on the law firms to provide the medical history,” despite clear requirements that the cardiologist herself was responsible for attesting to the accuracy of the information on the claims form. Mueller was also criticized by Bartle for allowing the law firms to fill out portions of the claims forms that were his responsibility, and for employing questionable diagnostic practices. Significantly, Bartle found that some of the lawyers may have violated ethical rules by agreeing to pay Dr. Mueller a bonus for every diagnosis that resulted in a claim for benefits. Bartle found that Mueller’s promised compensation was outlined in a letter from attorney Mario D’Angelo that said he would receive “an extra $1,500 if the claimant obtained a benefit or the claim was submitted to the trust for payment.” Lawyers for the law firms argued that there was nothing improper in the payment arrangement because Mueller was simply being paid for doing the extra work that went along with submitting a claim. Bartle disagreed, saying, “that is not what happened here. Dr. Mueller received additional compensation not for simply filling out the [claims forms] but only if the claimant received a benefit or if the [form] was forwarded to the trust. As a result, Bartle concluded that “Mueller’s remuneration depended on how he interpreted the echocardiogram and on what he stated on the form. He had a financial incentive to reach a particular result.” Calling it a “highly questionable practice,” Bartle said the payment “seems to violate a lawyer’s ethical obligation not to compensate a witness on a contingent fee basis.” In a separate order, Bartle referred the matter to the New York Disciplinary authorities “for further review and consideration.” But Bartle didn’t give the trust’s lawyers everything they asked for. Chirls and Fletman had asked Bartle to bar the two law firms from representing any clients in filing for benefits with the trust. Bartle declined to go so far, saying, “Although their conduct has certainly not been totally exemplary and in at least one respect there has been highly questionable behavior, we will not at this point take such a drastic step. To bar them now could cause needless harm to innocent claimants who are eligible for benefits.” Instead, Bartle found that the appropriate remedy was to allow the trust to audit all claims filed by clients of the Hariton and Napoli firms. Under the settlement agreement, the trust is allowed to audit 15 percent of the claims. But Bartle found there was “good cause” to allow the trust to begin auditing 100 percent of the claims submitted by the two New York law firms, as well as any claim in which the attesting doctor is either Crouse or Mueller. Likewise, Bartle ordered that the settlement trust may now begin auditing 100 percent of the claims that were certified by either Crouse or Mueller. But the judge also refused to order that claimants cannot rely on attestations of Crouse or Mueller to support their right to “opt out” of the settlement and pursue a lawsuit. To exercise such an opt-out, claimants must submit a form that certifies that they have tested positive for heart-valve damage. Bartle found that it was not his place to bar such claimants from relying on Crouse or Mueller. “While we do not condone the performances of Dr. Crouse or Dr. Mueller in the cases before us … this issue must be resolved in the lawsuit filed by the opt-out claimant and not before this court,” Bartle wrote. In those lawsuits, Bartle said, the defendant, Wyeth, “will be able through the adversary process to dispute any questionable conclusions or findings of either Dr. Crouse or Dr. Mueller which might surface.” One of the lawyers who represented the Hariton and Napoli firms — attorney Abraham C. Reich of Fox Rothschild O’Brien & Frankel — said he was disappointed by the judge’s ruling, and especially by the suggestion that his clients had behaved unethically. “These are honorable people,” Reich said, adding that he expects that the New York disciplinary authorities will agree that no ethical violations occurred. Reich said he was disappointed that Bartle premised his decision on the complete acceptance of the credibility of the trust’s expert witness. In court papers, Reich said, the two New York firms had set out to give the judge detailed information on each of the 78 challenged claims. But the judge’s analysis, he said, didn’t focus on any individual information.

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