X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
A group of Houston plaintiffs’ lawyers who were major players in fen-phen litigation in the late 1990s are now jumping into the ephedra arena and plan to use many of the tactics they learned in fen-phen suits in the new litigation. Attorneys from four Houston firms filed suits on April 9 against manufacturers of ephedra-based products, which promote weight loss and energy enhancement. The 16 suits mark the largest such filing since the Food & Drug Administration and other consumer product safety agencies took action against products containing the herbal supplement, the attorneys say. In 1997, the FDA proposed limiting the amount of ephedrine alkaloids in dietary supplements and required safety warnings on labels; the warnings included dosage limits. Other similar agencies have expressed the need to investigate the products more fully. “I believe we are more experienced and organized going into this,” says Edward Blizzard, a partner in Blizzard, McCarthy & Nabers, who filed eight of the 16 suits. The fen-phen cases, which led producers to stop manufacturing fen-phen-containing products and yielded settlements from $500,000 to $4.6 million nationwide, taught the attorneys effective discovery tactics, and how to share the workload, prepare depositions as if the witness was on trial and use two attorneys to ask questions during depositions. “We have a greater understanding of how these cases work,” Blizzard says of mass filings. “These companies have a lot of attorneys working on their behalf, but we have the skills to stand toe-to-toe against them.” Eight attorneys representing the firms of Blizzard, McCarthy & Nabers; Fibich, Hampton, Leebron & Garth; Williams Bailey; and Cruse, Scott, Henderson & Allen are working on the cases. Lawyers from the four firms filed the district court suits in Dallas, Harris, Hidalgo, Jefferson, Montgomery, Palo Pinto, Tarrant, Titus and Van Zandt counties, as well as in Bernalillo County, N.M., and Los Angeles County. One suit also was filed in federal court in Georgia. The defendants — makers of ephedra-containing products — include Herbalife International, American Nutrition Inc., Twin Laboratories and Metabolife International Inc. In addition, the petitions list various retailers as defendants, such as General Nutrition Centers, Wal-Mart and shopping malls that sell the products. A spokeswoman for GNC, Stephanie Mangini, says, “GNC’s policy is not to comment on pending litigation.” Cynthia Illick, the company spokesman for Wal-Mart, did not return a phone call seeking comment before press time on April 10. Ephedra, which is extracted from the ma huang plant, contains a mixture of chemicals, including ephedrine, which essentially acts like an amphetamine. Ephedra products are marketed as a tool to “rev up” the body to increase metabolism. Medical critics allege in reports released over the past five years that it constricts blood vessels and often raises blood pressure. Ephedra often is used by people seeking to lose weight and by athletes who need an extra energy boost during competitions. Plaintiffs in the cases range from college athletes to stay-at-home mothers; the alleged injuries range from strokes to death. In each petition, the plaintiffs allege that the defendants “purposely” downplayed health hazards and risks associated with the products, and they claim the defendants knew of such risks. Marketing of ephedra products included testimonials from users that encouraged the belief that there were no serious health hazards or risks, that the products had been clinically tested for safety and the products were proven safe medically, as alleged in the petitions. Bill Rizzardi, corporate spokesman with New York-based Twin Laboratories, declines to comment on the petitions, saying he has not seen them. Twin Labs pulled one of its products mentioned in the suits, Ripped Fuel, as well as other ephedra-based products off the market on March 31. On Feb. 21, a Bastrop County jury set damages at $2 million for the family of a 24-year-old man who died after a two-mile run. However, the jury found the victim 50 percent contributorily negligent, thereby reducing the family’s award to $1 million. Patti Sabel, vice president and assistant chief counsel for Herbalife International, declines to comment, saying the company has not yet been served with the suits. Representatives of American Nutrition Inc. and Metabolife International did not return repeated phone calls seeking comment before press time. Blizzard says he sees similarities in the allegations made in the ephedra petitions with those presented in the fen-phen litigation. In fact, once fen-phen was removed from the market, many of the ephedra defendants promoted their products as a safe alternative for weight loss and energy enhancement, he alleges. “With fen-phen we found that losing weight in a short period of time does not improve your health, unless you take the product for the rest of your life,” he says. “I don’t think we’ll find a doctor that will recommend taking ephedra for the rest of your life. It’s not effective, and we have shown that it is not good for your health.” Ephedra products attract consumers, Blizzard and his colleagues allege, because it is available over-the-counter and is promoted alongside other everyday products, such as children’s vitamins. The ephedra suits filed last week mirror hundreds of others filed across the country. Blizzard says that while there is no discovery-sharing agreement in place, he hopes one will be created soon. “There are some protective orders on documents, and we are trying to fight that right now,” he says. Tommy Fibich, a partner in Fibich, Hampton, Leebron & Garth, says that although his group of plaintiffs lawyers has only filed 16 suits so far, they are investigating hundreds of others. The challenge is proving that the products were used correctly and were the actual cause of damages. “You cannot predict who will react to this in a negative way,” Fibich says of ephedra. “We don’t know whose medical facts will lead to a tragedy, which is why these products should be taken off the market.”

This content has been archived. It is available exclusively through our partner LexisNexis®.

To view this content, please continue to Lexis Advance®.

Not a Lexis Advance® Subscriber? Subscribe Now

Why am I seeing this?

LexisNexis® is now the exclusive third party online distributor of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® customers will be able to access and use ALM's content by subscribing to the LexisNexis® services via Lexis Advance®. This includes content from the National Law Journal®, The American Lawyer®, Law Technology News®, The New York Law Journal® and Corporate Counsel®, as well as ALM's other newspapers, directories, legal treatises, published and unpublished court opinions, and other sources of legal information.

ALM's content plays a significant role in your work and research, and now through this alliance LexisNexis® will bring you access to an even more comprehensive collection of legal content.

For questions call 1-877-256-2472 or contact us at [email protected]

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.