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Dozens of diet drug lawsuits brought by out-of-state plaintiffs against a Montgomery County, Pa.-based division of the pharmaceutical maker Wyeth will remain in Philadelphia Common Pleas Court, a city judge has ordered. Judge Norman Ackerman, coordinating judge of the Philadelphia Common Pleas Court’s Complex Litigation Center, said that 55 cases where persons claim they suffered hypertension as a result of taking the diet drug compound fen-phen should remain in the city’s court system. Ackerman refused to dismiss the actions on forum non conveniens grounds. Ackerman’s decision to deny Wyeth’s motion for dismissal comes roughly a month after the Superior Court rejected an appeal by a group of local plaintiffs lawyers to overturn the judge’s September 2003 decision to dismiss five phenylpropanolamine (PPA) actions brought by out-of-state plaintiffs against Pittsburgh-based Bayer Corp. A plaintiffs attorney who co-authored the brief in the Wyeth matter said that Ackerman’s decision, handed down on Friday, could affect future forum non conveniens disputes over out-of-state plaintiffs’ claims — including the majority of the 13,000 fen-phen cases currently pending on the CLC’s docket. “For future litigation, [this decision] means that the court is open to accepting and retaining cases that have, in its view, significant contacts to Pennsylvania, even if the plaintiffs are from out of state,” said Lee Balefsky, the Kline & Specter attorney who represents three of the 55 plaintiffs who filed suit against Wyeth. All 55 plaintiffs affected by Friday’s order claim that their use of the Wyeth-manufactured diet drugs Pondimin and Redux has caused them to suffer from primary pulmonary hypertension (PPH). Wyeth Pharmaceuticals Inc. — a wholly owned subsidiary of Madison, N.J.-based Wyeth — is a Delaware corporation with its principal place of business in Collegeville, Pa. The U.S. Food and Drug Administration requested that Pondimin and Redux be removed from the market in September 1997, the plaintiffs’ brief states. But since as early as 1991, the plaintiffs allege, Wyeth was aware of the “discrete association between Pondimin and Redux and [PPH].” Decisions regarding the labeling, marketing and distribution of the drugs in questions were made at Wyeth Pharmaceuticals’ former headquarters in Radnor, Pa., according to the plaintiffs’ brief. “Pennsylvania was and remains Wyeth’s main nerve center,” the brief states. In moving for dismissal under forum non conveniens, Wyeth argued that the individual cases should be tried in the plaintiffs’ home states, as the majority of the medical witnesses are located in those places and all relevant Wyeth witnesses have already been deposed on videotape. In support of its argument, Wyeth cited in its brief Pearson v. Bayer Corp. — one of the five cases dismissed by Ackerman on forum non conveniens grounds in September 2003. In similarly worded opinions for all five of the PPA cases, Ackerman wrote that in dismissing the cases, he relied on the “private and public factors” forum non conveniens standard set out by the Superior Court in its 2002 decision in Humes v. Eckerd Corp., as opposed to the “oppressive and vexatious” test put forward by the state Supreme Court in its 1997 opinion in Cheeseman v. Lethal Exterminator Inc. In its brief in the instant case, Wyeth argued that public and private “interests” would be inconvenienced should the 55 fen-phen cases go forward in Philadelphia. Disposition of the cases would create “administrative difficulties” for the CLC, according to the brief. If the cases must be tried in Pennsylvania, Wyeth argued, they should at least be transferred to Montgomery County (where Collegeville is located). Wyeth’s attorney in the matter, Michael Scott of Reed Smith, did not immediately respond to a call seeking comment. Balefsky, who has been working on the PPH cases with fellow Kline & Specter lawyer Michelle Tiger, said that he believes the CLC is capable of processing the cases presently on its fen-phen docket. “The court system here certainly has shown that it would be able to handle a large volume of cases,” Balefsky said. He also said that during oral arguments on Wyeth’s forum non conveniens motion, Ackerman asked how the Wyeth cases differed from the Pearson group of PPA suits he had already dismissed on inconvenient forum grounds. The plaintiffs’ response was that here, marketing and labeling decisions regarding the drugs and their potential link to PPH were made in a county just outside Philadelphia. Co-signers to the plaintiffs’ brief included Sol Weiss and Daniel Siegel of Anapol Schwartz Weiss Cohan Feldman & Smalley. Kline & Specter and Anapol Schwartz were among the five plaintiffs’ firms that signed onto a King’s Bench appeal to the state Supreme Court in January, asking that the justices overturn Ackerman’s rulings in the Pearson group of cases. In an April per curiam order, the Supreme Court declined to exercise plenary jurisdiction under its “King’s Bench” powers. Last month, a three-judge Superior Court panel unanimously affirmed Ackerman’s rulings. A plaintiffs’ petition for re-argument before an en banc Superior Court panel is pending. Balefsky said that there are currently 20 fen-phen cases — many of them brought by out-of-state plaintiffs — being tried in Philadelphia. Those cases involve heart valve injuries. A trial in the first PPH/fen-phen case that has not yet been settled has been scheduled for early August, he said.

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