Even in a nation obsessed with weight loss, there’s never been anything quite like fen-phen. It was a set of magic pills from the wizards of Big Pharma: a prescription cocktail that promised to suppress appetite and promote weight loss, easily and safely. Fen-phen’s pledge: no pain, and no gain.
Even in a nation obsessed with litigation, there’s never been anything quite like fen-phen. After reports that the wildly popular diet drug caused damage to heart valves, American Home Products, now Wyeth, pulled its two fen-phen products off the market and girded itself for an assault by the plaintiffs bar. Eight years later, the litigation continues. Wyeth has already shelled out almost $14 billion, and just last month boosted its diet drug reserves again, bringing the total of what the company expects the diet drug litigation to cost all the way to $21 billion.
But it’s not the cost of the litigation that makes fen-phen so remarkable and disturbing a story. It’s where the money went. The court records of the global class action by which Wyeth attempted to resolve its fen-phen problems are a veritable catalogue of ignominy. Law firms allegedly attempting to fleece a lawyer-built victims trust fund. Doctors working for contingency fees, filing questionable supporting reports. Corporate executives, facing the prospect of ruin, hurling money at claimants. The fen-phen class action approved in 2000 was supposed to be a new paradigm of how to resolve a mass tort equitably. Instead the iron law of unintended consequences has ruled. Misconduct has not been punished, but rewarded. Some uninjured people have been paid to go away while thousands of claimants alleging real injuries still wait for compensation.
The fen-phen litigation may at last be nearing an end, thanks to a January hearing to salvage the class action and fevered negotiations to settle the remaining cases in the courts. Its influence will continue to resound, however. What happened in fen-phen can be summed up as a series of mistakes, some made in good faith, others not. It began with AHP’s decision to sell Pondimin and Redux as a prescription panacea for overweight Americans and continued with an effort to resolve Wyeth’s liability that ended up bringing the civil justice system itself into disrepute. This isn’t just an academic or abstract policy matter. Legitimate mass tort cases continue to make their way into and through the courts. Fen-phen’s sorry story provides, if nothing else, a guide for how these cases should not be handled.
Wyeth was in big trouble in 1998 when the fen-phen litigation began. It was responsible for two medications, Pondimin and Redux, that, taken in combination with a third drug, were known as fen-phen. The combination was widely prescribed as an appetite suppressant until July 1997, when doctors at the Mayo Clinic announced that they’d discovered an association between diet drugs and heart valve disease. A couple of months later, at the request of the Food and Drug Administration, Wyeth withdrew Pondimin and Redux from the market.
Inevitably, litigation followed, particularly as more studies confirmed an association between the drugs and heart valve damage. By 1999 Wyeth faced almost 20,000 personal injury suits in state and federal courts and more than 100 putative class actions, some of which were moving quickly toward certification. The first two fen-phen cases to go to trial were disasters for Wyeth. One settled after several plaintiffs in Mississippi won more than $100 million in compensatory damages. In the other, Dallas lawyer Kip Petroff won a $23 million verdict, including punitive damages.
