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The first diet-drug trials to surface in the pool of more than 12,000 fen-phen lawsuits pending in the Philadelphia Court of Common Pleas are under way. Four trials began last week with 13 plaintiffs, and since then, the defendant, pharmaceutical giant Wyeth Corp., has settled with at least two plaintiffs — in one case after a jury awarded a Texas man $48,000 in the injury phase of a reverse-bifurcated trial. The lawsuits against the Madison, N.J.-based Wyeth pharmaceutical company allege it was negligent in manufacturing the weight-loss drugs Redux or Pondimin without providing adequate warnings that the drugs could damage the valves of the heart by causing them to leak. The plaintiffs, who are from Pennsylvania, Utah and Texas, are among those who opted out of Wyeth’s national $3.75 billion class action settlement of lawsuits brought by former users of the diet drugs, which were pulled off the market in 1997. By opting out of the settlement when they did, these plaintiffs cannot collect punitive damages from the pharmaceutical company. An eight-member jury on Tuesday awarded $48,000 to a 40-year-old Houston man, Henry A. Clepper, finding that Pondimin had caused his “mild” heart-valve problems. The trial for Clepper v. Wyeth and Istnick v. Wyeth was reverse-bifurcated at the direction of Common Pleas Judge Gary S. Glazer. Clepper’s case would have continued Thursday to a second phase where the jury would have heard evidence of whether Wyeth was negligent. But the pharmaceutical company settled with Clepper for the amount of the verdict Tuesday evening, said Dallas attorney Kip Petroff of Petroff & Associates. Petroff and James A. Morris Jr. of Provost & Umphrey in Beaumont, Texas, were Clepper’s lead attorneys. In the same verdict, the jury rejected the claim of a second plaintiff, 53-year-old Rhonda Gail Istnick of Canton, Texas. The finding ended Istnick’s case after the six-day trial that began July 19. The jurors concluded that Istnick’s “moderate” heart valve condition was not caused by her taking the diet drug in 1996. Istnick’s lead lawyer, Edward A. Williamson of the Williamson Law Firm in Philadelphia, Miss., could not be reached for comment. Wyeth was represented by David P. Gersch, an Arnold & Porter partner in Washington, D.C. In a statement about Tuesday’s verdict, Wyeth said it “reaffirms its belief that there are a significant number of downstream opt-out cases that lack merit, and the company will continue to challenge them as appropriate.” (“Downstream” refers to individuals who opted out of the national settlement by May 2003.) With the Clepper and Istnick trial concluded, three juries continue to hear testimony and evidence in trials overseen by Common Pleas Judges Arnold L. New, Nitza I. Quinones Alejandro and Alfred J. DiBona Jr. At the beginning of May, approximately 12,700 fen-phen cases were pending in the Complex Litigation Center of the common pleas court. The deadline for filing suit for those who opted out of the national settlement was May 4, and it is probable that parties have settled some cases since then; however, a more recent count of the pending cases was not immediately available from the Complex Litigation Center. Court administrators said they grouped the fen-phen cases for trial by considering which state the plaintiffs are from, what kind of heart condition they complain of, which law firms represent them, and when the plaintiffs opted out of the national settlement. A second group of fen-phen trials is scheduled to begin Aug. 16. “We’re going to be hearing about a lot of these cases in the future,” said Judge William J. Manfredi, supervising judge of the civil trial division. So far, individual judges are deciding for themselves whether to conduct reverse-bifurcated trials in the fen-phen litigation. New and Glazer chose the reverse trial structure, while Quinones and DiBona did not. Judge Norman Ackerman, who runs the Complex Litigation Center, said Thursday that the court might decide in the near future to utilize the reverse-bifurcated structure in all fen-phen cases– as it does in asbestos trials. “I very well may go that route,” he said. Christopher Garland, a spokesman for Wyeth, said he believed Philadelphia to be the first court in which Wyeth has encountered reverse-bifurcated fen-phen trials. Petroff, who has been involved in fen-phen litigation in other states, confirmed this and said he’s not happy about it. Hearing experts testify about what caused injuries and what the amount of damages should be without understanding why the plaintiff wants to hold Wyeth responsible is confusing to jurors, Petroff said. The structure also gives Wyeth the power to decide whether it wants the plaintiffs to prove its negligence in the second phase, Petroff said. “It gives Wyeth an unfair advantage because you present the case in a sterile fashion without giving the jury the full presentation,” he said. “It’s like it sounds — you’re trying the case backwards. Philadelphia should do it the way every place else does — united.” Petroff also said the reverse bifurcation could prolong trials when witnesses come from out of town to testify in one phase and must travel again to testify in the second phase. “It’s tough to schedule witnesses,” he said. “The parties don’t know how to prepare the case until the last minute.” Petroff’s team didn’t learn the trial would be reverse-bifurcated until the Thursday before trial began on Monday, July 19, he said. Michael J. Miller of Miller & Associates in Alexandria, Va., whose firm is representing several plaintiffs in the trials, echoed Petroff’s sentiments. “I don’t think you can try a case in a vacuum,” he said. “A jury should have all the evidence.” Miller also said he doubted the structure would encourage settlements or promote court efficiency by shortening trials. Lawyers predicted that the next case to go to the jury — as early as today — would be Cannon v. Wyeth, the reverse-bifurcated case in New’s courtroom brought by a Chester County woman. The woman, Tracy Cannon of Thorndale, Pa., is represented by Christopher Ide and William Breit of Miller & Associates. Wyeth is being defended by Richard “Rip” Sullivan Jr. of Reed Smith’s office in Falls Church, Va., and Charles P. Goodell Jr. of Goodell Devries Leech & Dann in Baltimore. Another plaintiff from Pennsylvania was supposed to be a part of the same trial, but her case, Cheatham v. Wyeth, was dismissed last week when she was found ineligible to have brought suit, Garland said. Quinones is presiding over a trial in which five plaintiffs from Utah, represented by Houston attorney Edward F. Blizzard of Blizzard McCarthy & Nabers, have sued Wyeth for negligence. Peter T. Grossi Jr. of Arnold & Porter’s Washington office is the lead defense attorney for Wyeth. The plaintiffs in DiBona’s courtroom didn’t have to travel far — three are from Philadelphia and the fourth is from Bensalem, according to court records. Miller is arguing the case for the plaintiffs, and Reed Smith attorneys Barbara R. Binis of Philadelphia and George E. McDavid of Princeton are leading the defense of Wyeth in the trial. A week ago, a fifth plaintiff in DiBona’s trial, Herbert Gross of Bala Cynwyd, Pa., settled with Wyeth for an undisclosed amount. Gross was represented by Mark Hoffman of Kline & Specter.

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