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Pharmaceutical manufacturer Wyeth has officially green-lighted a proposed settlement offer for fen-phen plaintiffs who opted out of the nationwide class action settlement and allege in lawsuits around the country that Wyeth’s diet drug compound caused their heart troubles. Wyeth acknowledged Jan. 18 that it was discussing a proposed settlement structure with a group of attorneys representing fen-phen plaintiffs, but said the agreement was contingent on the “overall level of participation” in the process. On Monday, the diet drug manufacturer said in a statement that it is “prepared to move forward with the process” and that lawyers representing a “substantial number of claimants” have agreed to sign on. Wayne Spivey, a Philadelphia plaintiffs attorney involved in the discussions, said lawyers representing roughly 30,000 plaintiffs — half the 60,000 fen-phen cases pending nationwide — are participating. Spivey, a member at Shrager Spivey & Sachs, said Wyeth had until Friday to walk away from the agreement and didn’t. “It’s a very good thing,” said Spivey, who’s in charge of implementing the settlement process along with Jerry Alexander of Alexander & Associates in Omaha, Neb., and Ellen Presby of Baron & Budd in Dallas. “It’s the beginning of the end.” Some attorneys suggested the uncertain environment surrounding the litigation has fueled the settlement discussions. After more than 30 jury verdicts in Philadelphia over the last seven months, neither Wyeth nor the fen-phen plaintiffs can claim an edge. While some damage awards have topped $500,000, others have barely covered the cost of litigation. Several juries found in favor of Wyeth — including one that refused to award damages to two plaintiffs at trial last week. “When you see that type of variability, the parties on both sides look at each other and say, ‘There’s some unpredictability here,’” said Philadelphia attorney Martin Rubenstein, whose law firm will be participating in the opt-out settlement process. “It’s shown both sides that they ought to take a serious look at settling these.” Also last week, Common Pleas Judge Mark Bernstein set aside a $780,000 jury verdict, saying a Utah woman had “knowingly and voluntarily” assumed the risks of heart damage after being warned by her physician of the potential negative side effects of ingesting a diet drug to lose weight. Some plaintiffs attorneys have wondered whether other judges will follow Bernstein’s lead. And in New Jersey, a judge threw out 160 of 196 cases that Wyeth challenged as ineligible for litigation in light of the nationwide class settlement in federal court. In 1997, Pennsylvania corporation American Home Products (now the Madison, N.J.-based Wyeth) withdrew its diet-drug combination known as fen-phen from the market after medical studies reported the drugs could cause heart trouble. In corporate filings, Wyeth recently raised its estimate for total cost of fen-phen litigation to $21.1 billion. An attorney who signs on to the recently negotiated settlement process agrees to recommend to his or her clients that they allow the attorney to negotiate a settlement of the plaintiff’s case with Wyeth. Plaintiffs with heart-valve injuries could generally recover between $5,200 and $200,000, depending on the severity of their injury and other factors. Wyeth would pay an additional $100,000 toward surgery the claimants undergo before a certain date, according to court papers describing the deal. Wyeth has generally been settling cases with plaintiffs suffering from serious forms of primary pulmonary hypertension, a potentially fatal condition. Doug Petkus, a Wyeth spokesman, said the company “believes this process is one that does provide an appropriate methodology for trying to resolve these claims. Many steps remain.” Wyeth also said it would continue to “aggressively litigate” with those attorneys who don’t participate in the process. One such attorney is Houston lawyer George Fleming of Fleming & Associates, who represents 8,000 fen-phen plaintiffs. He called the settlement deal “inadequate.” “I know my caseload very well, and [this deal] is inappropriate for my caseload,” Fleming said yesterday. “The limits of the settlement are about $200,000. Wyeth knows I have a lot of cases in which that’s too low.” Fleming also frowns upon subjecting his clients to a Wyeth medical audit, which would be required of some settling plaintiffs. He said that Wyeth audits were what caused delay and frustration in the nationwide class settlement. Rubenstein said the settlement “is not one-sided in any direction.” “Wyeth is not overpaying or underpaying cases,” said Rubenstein, of Levy Angstreich Finney Baldante Rubenstein & Coren. “They can settle this without the expense, time delay and normal trial risks.” Spivey said administrators are setting up a secure Web site where plaintiffs can enter their individual case information. More than 12,300 fen-phen cases were pending in the Philadelphia Court of Common Pleas at the close of business Tuesday, according to court statistics. Court administrators could not yet estimate what portion of the 30,000 cases in the settlement process are Philadelphia cases. Spivey estimated 3,000 Philadelphia cases could be affected.

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