October 3, 2012 – Nearly 15 years after the Fen Phen multidistrict litigation (MDL) was established, new cases continue to be filed alleging that the notorious diet drug caused life-threatening pulmonary hypertension and heart valve problems. Last month, a panel of federal judges transferred five new Fen Phen lawsuits to the MDL, which was originally established back in December 1997. While most individuals injured by Fen Phen side effects believe that any future claim is barred by state-imposed statutes of limitations, under the latency argument, plaintiffs in many states have been able to bring claims stating that they did not discover they were injured until recently, since signs of Fen Phen side effects may not appear for years or even decades after last use.
What’s the problem?
As of September 2012, approximately 100 Fen Phen Lawsuits were still active in the federal MDL. However, since the litigation was centralized in 1997, more than 20,000 cases have been included in the consolidated proceedings. Plaintiffs who brought the new claims opposed the transfer, arguing that the vast majority of the litigation has run its course, and that consolidation would provide little if any tangible benefit. The U.S. Judicial Panel on Multidistrict Litigation (JPML) disagreed, stating 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.
During the early and mid-1990’s, Fen Phen was a widely-prescribed diet drug that combined the active ingredients fenfluramine and phentermine. The U.S. Food & Drug Administration (FDA) recalled fenfluramine in September 1997 after its was shown to have the ability to cause persistent pulmonary hypertension (PPH) and other life-threatening heart valve problems.
Within months of fenfluramine’s recall, the number of Fen Phen lawsuits filed in courthouses around the country began to skyrocket. The JPML ruled that all complaints involving phentermine, fenfluramine and dexfenfluramine were to be consolidated in the Eastern District of Pennsylvania before U.S. District Judge Harvey Battle, III.
MDLs are commonly implemented in complex pharmaceutical litigation where a large number of similar claims are filed involving a single product. Coordination is intended to avoid duplicative discovery, reduce conflicting rulings by different judges, and to serve the convenience of all parties involved in the litigation.
Earlier this year, Pfizer filed a motion with Judge Bartle seeking to throw out all future lawsuits relating to Fen Phen, arguing that there is a lack of evidence linking the drug to the development of PPH nine or more years after last use. Bartle struck down the motion, stating that there are a sufficient number of credible medical studies on the topic, and that a jury will be needed to determine whether Fen Phen complications caused the plaintiffs’ injuries.