Fen Phen Lawsuits Continue to be Transferred into Federal Litigation

Nearly 15 years after a federal multidistrict litigation (MDL) was established for all fen-phen lawsuits filed over side effects of the recalled diet drug, new cases continue to be transferred into the consolidated proceedings.

On September 27, the U.S. Judicial Panel on Multidistrict Litigation issued an order (PDF) to transfer five new complaints into the fen-phen MDL, which was originally established in December 1997.

Fen-phen was a popular diet drug that involved a combination of phentermine and fenfuramine, which was also marketed seperately as Pondimin.  Fenfuramine was recalled in September 1997, after side effects were shown to cause life-threatening pulmonary hypertension and heart valve problems.

Long after the drug was removed from the market, new product liability lawsuits continue to be filed alleging that side effects of fen phen caused former users to suffer serious and potentially life-threatening heart problems, including persistent pulmonary hypertension (PPH), which may not appear for years after last use of the medication.

Within months of the recall, as the number of lawsuits over fen phen began to skyrocket, the U.S. Judicial Panel on Multidistrict Litigation ordered that all complaints involving the diet drugs phentermine, fenfluramine or dexfenfluramine will be consolidated for pretrial proceedings before U.S. District Judge Harvey Battle, III in the Eastern District of Pennsylvania.

Fen-Phen MDL Has Included 20,000 Cases Since 1997

Multidistrict litigations, more commonly known as an MDL, are often established in the federal court system where a large number of cases have been filed involving common facts or allegations.

Coordination of the proceedings is designed to reduce duplicative discovery across a large number of claims, avoid conflicting pretrial rulings from different judges and to serve the convenience of the parties, witnesses and the courts.

As of the beginning of this month, about 100 fen phen lawsuits were still active in the federal MDL. However, more than 20,000 cases have been included in the consolidated proceedings over the past 15 years.

Plaintiffs who brought these five new lawsuits opposed the transfer, arguing that the MDL had already run its course and largely concluded. They maintained that transfer would provide little benefit at this time. However, the MDL panel disagreed and indicated in the transfer order that the status of the MDL does not preclude transfer at this time.

“The transferee judge has been extremely successful in resolving claims in a timely fashion, and transfer likely will aid in a speedier, not slower, resolution of plaintiffs’ claims,” the panel ruled last week.

Pfizer Inc. and their Wyeth subsidiary have reportedly paid out more than $21 billion in fen-phen settlements since the diet drug was removed from the market.

Side Effects of Fen Phen May Not Appear For Years

Earlier this year, Pfizer filed a motion in the MDL seeking to cut off new lawsuits over fen phen, arguing that there is a lack of evidence linking the diet drug to the development of persistent pulmonary hypertension (PPH) nine or more years after last use of the medication.

In an order (PDF) issued August 30, Judge Bartle rejected this attempt and determined that expert testimony introduced by plaintiffs who have filed such lawsuits long after last use of the medication do rely on reasonable medical studies and case reports, and that a jury will need to determine whether that evidence is sufficient to establish side effects of fen-phen caused the plaintiffs’ injuries.

While most individuals diagnosed with PPH years after last use of fen phen believe any potential claim is barred by the statute of limitations, under the latency arguments, plaintiffs in many states have been able to bring claims arguing that they did not discovery they were injured until recently, since signs of PPH from fen phen may not appear for years after last use.