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Calling the drug manufacturer’s protests “overblown,” a Bergen County, N.J., judge last week consolidated five fen-phen diet drug cases as the first of 5,800 to go to trial in New Jersey. “[T]he common issues here present circumstances where the judicial economy achieved through a single trial involving several plaintiffs significantly outweighs the alternative of repetitive trials of individual cases,” wrote Superior Court Judge Charles Walsh, who is overseeing the cases of plaintiffs who opted out of a federal class-action settlement. Fen-phen, a combination of appetite-suppression drugs, was removed from the market in 1997 after it was linked to heart-valve damage. The five plaintiffs cited specific symptoms of heart disease as justification for opting out of the $3.75 billion nationwide settlement reached in 2002. Wyeth, the Madison, N.J.-based maker of the drugs, claimed that trying the cases in groups would promote juror confusion and prejudice the defense. But Walsh said that the special measures he was employing to aid jurors’ comprehension — providing them with reference materials and allowing them to take notes and ask questions — minimized risk of prejudice. To bolster its case, Wyeth presented Walsh with extensive evidence that consolidation would be an abuse of judicial discretion because details of the various plaintiffs’ cases vary widely. For example, Wyeth complained that the plaintiffs took different combinations of the drugs Redux, Pondimin and Phentermine. But Walsh said that Wyeth failed to demonstrate how that complicates the evidence or injects prejudice into a joint trial. Wyeth also noted varying start and end dates for the five plaintiffs’ use of the diet drugs, saying the company’s alleged knowledge of the drugs’ danger may vary from one case to the next. But Walsh said the company presented no information supporting a “state of the art” defense that would apply to only some plaintiffs. In addition, Wyeth said the jury would be confused by the different injuries and symptoms claimed by the five plaintiffs. But Walsh said “courts addressing this issue have expressed confidence in the jury’s ability to separate these types of issues.” Wyeth relied heavily on an affidavit by Irwin Horowitz, a psychology professor at Oregon State University who has conducted extensive research on juror information processing in civil trials with multiple plaintiffs. Horowitz’s research showed that consolidation of four or more plaintiffs impeded the jurors’ ability to separate evidence applicable to each plaintiff. He also found that jurors are more likely to find defendants liable and award higher damages in a trial with multiple plaintiffs. Walsh called Horowitz’s research and findings “credible” and “entitled to serious consideration,” but said the “trial safeguards” he has put in place would allow the jury to render fair verdicts. Walsh wrote that Horowitz’s experiments were conducted without jury aids and that the professor acknowledged the merits of juror note-taking. Walsh also found credible an affidavit the plaintiffs submitted from Peter Blanck, a professor of law and psychology at the University of Iowa. Blanck asserted that “safeguards” to aid juror comprehension and consolidation of plaintiffs in homogenous groups can mitigate juror prejudice to “harmless levels.” Besides permitting note-taking, juror questioning and use of a binder with facts about each plaintiff, Walsh said he would use a system of color-coding to organize evidence and hold a hearing to discuss any additional remedies proposed by parties. Wyeth’s lawyer, Daniel Winters of Porzio, Bromberg & Newman in Morristown, N.J., declines to comment on the ruling; and co-counsel, Robert Brennan of Porzio, Bromberg and Anand Agneshwar of Arnold & Porter in New York, did not return calls seeking comment. The lead plaintiffs’ counsel, Esther Berezofsky of Williams, Cuker & Berezofsky in Cherry Hill, N.J., says she is pleased with the ruling, but another lawyer on the team says he is not sure consolidation would provide more benefit to the plaintiffs or the defense. “I’m a little concerned about the consolidation. You can talk to jury consultants and you can get 20 different opinions about whether the weak case drags down the strong case or the strong case drags down the weak case,” says Christopher Seeger of Newark, N.J.’s Seeger Weiss. “The problem is, in New Jersey, Judge Walsh has thousands of cases he’s dealing with, and if he tries to move them one at a time, he’s going nowhere. He puts in every safeguard to make sure cases that are similar are tried together,” says Seeger. Seeger, who represents two of the five plaintiffs in the consolidated group, says that because this group has only moderately severe injuries, its success or failure would give a good indication of the odds of success for other plaintiffs. But Wyeth has vowed not to settle any of the cases, says Seeger. Another plaintiffs attorney in pharmaceutical mass tort cases, Sol Weiss, says fen-phen cases in Philadelphia courts have long been consolidated into homogeneous groups of four. The arrangement has returned a mix of verdicts, says Weiss, of Anapol, Schwartz in Cherry Hill. For example, he says, a Philadelphia jury recently returned verdicts of $1,500 for one plaintiff and $750 each for the other three, all of whom had moderate heart valve damage. But John Lavelle Jr., head of the mass tort group at Ballard Spahr Andrews & Ingersoll in Voorhees, N.J., has another view. He says that while consolidation is the norm in asbestos cases, for example, it is not in other mass torts. “[T]here are some serious issues of how the jury is going to relate to causation and individual patient history.” Mass tort cases most appropriate for consolidation are “mature” ones that have been litigated for long enough that little or no new evidence will be developed and appellate review of novel legal issues has been concluded, says Lavelle. Fen-phen, which has been litigated since 1997, does not fall into that category, Lavelle says.

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