September 2002
Fen-Phen Class Action Lawsuit: Time is Running Out

Some class action lawsuits receive national attention. A few years ago, the breast implant case received much publicity. Now, we have the Fen-Phen case. Recently, and still continuing, advertisements from lawyers handling Fen-Phen claims are common.

Since one deadline has passed and another critical deadline is not far away, I thought it was timely to cover the highlights of the Fen-Phen case in layman's terms, if that is possible.

Just what is Fen-Phen? There is no drug with the name of Fen-Phen. Rather, the name became a popular term for diet drugs taken in combination. American Home Products ("AHP") produced and sold two prescription diet drugs with the names of Pondimin® and Redux Ô.

A third diet drug with the name of Phentermine was not produced nor sold by AHP, but it was taken in combination with AHP's diet drugs. When taken in combination with Phentermine, the diet drugs where referred to as Fen-Phen.

In 1997, AHP withdrew Pondimin® and Redux Ô from the market. After many lawsuits were brought against AHP for heart valve abnormalities or damage, AHP entered into a class action settlement. A Settlement Trust was established in September 2000. The Trust is for the purpose of compensating those individuals who used these particular diet drugs and who have been diagnosed with heart valve abnormalities.

Without attempting to be too technical, the heart valve abnormalities resulting from use of AHP's diet drugs occur in the two valves located on the left side of the heart. These valves are known as the aortic valve and the mitral valve, both acting like tiny gates in the heart. In some diet drug users, these valves have developed lesions, preventing proper operation. This condition is also known as regurgitation.

A person who has regurgitation may not have any noticeable symptoms. An Echocardiogram is the proper method to determine whether regurgitation exists. It is administered by a cardiologist who then analyzes the Echocardiogram and provides a diagnosis.

The Trust is intended to pay a sum of money to a person diagnosed with a heart valve abnormality and who used the diet drugs. Although rather complicated, five levels of severity and 11 age groupings have been established.

If a cardiologist determines that you have valvular heart disease (the term used for these particular valve abnormalities), the amount of payment you may receive depends on your age when the diet drugs were used. I cannot reproduce the matrix of compensation in this column. However, here are a few examples.

A person who was 25 years of age and used the diet drugs for more than 61 days and who has been diagnosed with Level 1 valvular heart disease may receive $123,750 before expenses and attorney fees. A person who was 50 years of age, used the diet drugs for more than 61 days, and is diagnosed with Level 5 valvular heart disease may receive $1,091,612 before expenses and attorney fees.

The Trust provides for a range of payments from $7,389 (age 70+ with minimal damage) to $1,485,000 (age less than 24 and with the most severe damage). As of June 28, 2002, the Trust had paid out more than $771,000,000 in Matrix benefits.

Time is running out. August 1, 2002 was the deadline for reimbursement of certain expenses such as for the diet drugs themselves and for the Echocardiogram. That date has obviously passed.

However, to qualify for the matrix payments described above, you must have your Echocardiogram completed with a diagnosis by a cardiologist NO LATER THAN January 3, 2003.

You can pursue the process and make your claims without an attorney. However, it is advisable to have an attorney assist you through the evaluation of your claim. If your condition appears to be more serious than Level 5, your compensation may be substantially greater than allowed by the matrix. This would require opting out of the class action and filing a lawsuit against AHP.

Using an attorney, however, will likely take a major percentage of the compensation you eventually receive. It is not uncommon for the attorneys to take 40% or more of the amount paid from the Settlement Trust or through a lawsuit.

Nonetheless, the 55%-60% you may receive could well be worthwhile for you. 60% of a million dollars is $600,000! Even 60% of $300-$400,000 should be of a great interest.

If you used either of the AHP diet drugs, whether alone or in combination with Phentermine, you may be eligible for compensation. It will generally not cost you anything to find out. Simply call an attorney.

YOUR QUESTIONS: Do you have a particular question that you would like answered? To better serve the readers of the Utah Spirit, please direct your questions in writing to Michael A. Jensen, Elder Law Attorney, PO Box 571708, Salt Lake City, Utah 84157-1708, or by e-mail at: mike-spirit@utahattorney.com. From time to time, I will attempt to answer some of those questions.