Five years ago (Apr. 6-8, 2001), lawyers rushed to file lawsuits against manufacturers of dozens of over-the-counter cold remedies such as Alka-Seltzer Plus and Contac, whose formulations had long included a stimulant — phenylopropanolamine, or PPA — which had just been linked to a rare risk of hemorrhagic stroke and banned by the FDA. However, plaintiffs were soon faring badly in early trials and legal rulings (Oct. 28, 2003; May 1, 2004). Now The American Lawyer’s Alison Frankel has a retrospective:

…Plaintiffs lawyers talked about PPA as the next fen-phen, the next gold mine of a litigation. …

It wasn’t. And though there are still a few plaintiffs firms with significant PPA caseloads, many others are closing down their PPA dockets, settling the cases for which they can wrest something from defendants and dismissing the rest. “PPA was not a successful litigation for us,” concedes Christopher Seeger of New York’s Seeger Weiss, who has transferred his attention to the Vioxx litigation. Adds [Ellen] Relkin of Weitz & Luxenberg: “It hasn’t been as profitable as we would have liked.”

Why not? Frankel says drugmaker defendants battened down and refused to settle other than relatively strong cases (a strategy also adopted, less happily, by Merck). Although defendants lost fights to prevent federal multidistrict consolidation and to exclude plaintiffs’ scientific testimony, it soon developed that the incidence of strong cases was not in fact very high. And crucially, the caseload was divided up among many different defendants; as a result, the litigation never vaulted into the “bet-your-company” category. (“The Mass Tort Bonanza That Wasn’t”, Jan. 6).

Filed under: fen-phen