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Lawyers representing individual plaintiffs who took the fen-phen diet drugs suffered setbacks in a pair of decisions handed down last week — one state, the other federal. In Sokoloski v. Les Laboratoires Servier, the Pennsylvania Superior Court upheld the dismissal of 23 lawsuits brought against two French companies that manufactured powder ingredients used to make the drugs, saying the plaintiffs were judicially estopped from bringing such claims due to their participation in the federal class action against American Home Products Corp. And in federal court, U.S. District Judge Harvey Bartle III ruled that hundreds of plaintiffs who took advantage of an “intermediate opt-out” provision in the class action settlement cannot now file lawsuits with dozens or even hundreds of co-plaintiffs but instead must each file separate suits — each paying the $150 court filing fee. In 1997, American Home Products Corp., now the Madison, N.J.-based Wyeth, withdrew the diet-drug combination known as fen-phen from the market after medical studies reported the drugs could cause heart-valve trouble. The federal multidistrict litigation, based in the U.S. District Court for the Eastern District of Pennsylvania, stems from a single complaint that was filed to combine the claims of class members in state and federal fen-phen suits. The Superior Court panel in Sokoloski ruled that this single complaint, asserting American Home Products to be the sole defendant responsible for fen-phen injuries, judicially estopped plaintiffs from proceeding with claims against a different defendant. Indeed, the panel noted in its 15-page unpublished opinion, the federal court accepted the class’s assertion regarding American Home Products when the court granted the class’s motion for certification and again when it approved the parties’ settlement in 2000. The plaintiffs “cannot now, after having successfully pressed the position of [American Home Products'] singular responsibility for Fen-Phen injuries, adopt a theory squarely at odds with their previous position to advance another claim against an additional defendant,” the Superior Court wrote. As a general rule, the court explained, a party to an action is estopped from assuming a position inconsistent with the party’s assertion in a previous action, if that contention was successfully maintained. “What this decision effectively does is confirm that litigation against these parties cannot proceed,” said William Janssen, who represented the French defendants with his colleagues at Saul Ewing, Clayton Undercofler and Susan Zima. “This will apply globally to the entire Philadelphia diet-drug litigation.” The decision handed down by Superior Court panel — Judge Correale F. Stevens and Senior Judges Frank J. Montemuro Jr. and John T.J. Kelly Jr. — affirmed Philadelphia Common Pleas Judge Allan L. Tereshko’s granting of summary judgment to Les Laboratoires Servier and Servier Amerique in 2001. The plaintiffs were members of the federal class action against American Home Products — and did not opt out — but also sued the French drug companies in 1999, said Lee B. Balefsky, who represented the plaintiffs in 12 of the 23 cases. “We didn’t believe the class action settlement was intended to exclude claims against other potentially culpable parties, including health care providers and other manufacturers,” said Balefsky, a lawyer at Kline & Specter. Few plaintiffs were interested in filing suits against Les Servier because of the difficulty in getting a judgment against a foreign company in the United States, Balefsky said. “With Wyeth being the deep pocket that they are and the obviously culpable manufacturer in the United States as witnessed by the billion-dollar verdict that came down in Texas [recently], it didn’t make a lot of sense for plaintiffs to pursue claims against Les Servier,” Balefsky said. Balefsky was referring to a jury in Beaumont, Texas, that returned a record $1 billion verdict in a fen-phen suit on April 27. He downplayed any effect the Superior Court’s ruling would have on pending fen-phen litigation in Philadelphia and other jurisdictions. A decision on whether to appeal has not yet been made, Balefsky said. Jonathan W. Miller of the Locks Law Firm, who represented the remaining plaintiffs, did not return calls for comment Friday. As of last week, approximately 12,700 fen-phen cases were pending in the Complex Litigation Center of the Philadelphia Court of Common Pleas. Mary McGovern, the center’s manager, said she expects to see fewer filings from now on. The deadline for filing suit for those who opted out of the class action settlement was May 4. BARTLE’S DECISION In federal court, Judge Bartle handed down a decision in Cockrell, et al. v. Wyeth, a case brought by 62 plaintiffs, that will directly impact thousands of other plaintiffs. The plaintiffs were all originally participants in the massive $3.75 billion federal class action settlement but later took advantage of an “opt-out” provision that allows them to sue Wyeth in the tort system for compensatory but not punitive damages. Bartle noted that there are “tens of thousands” of such “intermediate” or “back-end” opt-out plaintiffs. Lawyers representing the opt-out plaintiffs began filing suits in courts around the country, sometimes including as many as 700 plaintiffs in each suit. Wyeth removed the cases to federal court and later asked that they be transferred to Bartle, who continues to handle all federal fen-phen cases under the multidistrict litigation program. Now Bartle has handed down a series of rulings that will make the litigation much more costly for the plaintiffs and their lawyers. In the first series of decisions, Bartle held that the plaintiffs had improperly joined additional defendants, such as drugstores, in an effort to avoid federal diversity jurisdiction. Bartle then ruled that each of the plaintiffs must file his or her own lawsuit. “While all plaintiffs allege to have suffered valvular heart disease as a result of using Pondimin or Redux, their claims clearly do not arise out of the same transaction, occurrence or series of transactions or occurrences,” Bartle wrote. Bartle also ordered each plaintiff to pay the $150 fee when filing an amended complaint. Plaintiffs lawyers in the Cockrell case, which was originally filed in Mississippi Circuit Court, did not object to Bartle’s severance order but asked him to reconsider his order requiring each plaintiff to pay the filing fee. Bartle refused, finding that the federal statute that sets the filing fee was designed as a “revenue-raising measure” to fund the operation of the court system. If thousands of fen-phen plaintiffs were excused from the filing fee, Bartle said, “the federal fisc and more particularly the federal courts [would be] wrongfully deprived of their due.” Bartle said the 62 plaintiffs in the Cockrell case were “simply the tip of the iceberg,” noting that he had already granted severance orders involving almost 2,000 plaintiffs in other suits — including two that named more than 700 plaintiffs apiece. “If the $150 fee is eliminated for all severed plaintiffs … the government will suffer a loss of hundreds of thousands of dollars in revenue at the very time the workload of the clerk’s office is being greatly increased because of the added filings,” Bartle wrote.

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