Medical Science Takes Uneasy Role in Drug, Asbestos Product Liability Cases

When word spread that people injured by the fen-phen diet drug cocktail could share in a multibillion dollar legal settlement, law firms began sponsoring health screenings so large that a judge quipped that one doctor’s work “would have been the envy of Henry Ford.”

Tens of thousands of people took echocardiograms–sometimes on machines set up in hotel rooms–to see if they had heart valve damage caused by the drugs. Doctors earned hefty fees evaluating tests for lawyers, with some handling as many as 10,000 diagnoses apiece.

Years later, people are still arguing whether the scramble to identify victims was hopelessly corrupted by fraud. The problem, lawyers and medical experts said, is one that is cropping up more and more often in big product liability cases involving medicine.

“Astounding medical discoveries can prompt lawsuits quickly,” said Andrew A. Chirls, chancellor of the Philadelphia Bar Association. So quickly, he said, that “medicine isn’t always given time to ripen.”

In the fen-phen case, the drug maker Wyeth settled a national class action lawsuit over the drug’s potential dangerousness in 2000, three years after pulling the medicines. Since then, attorneys and doctors have argued over how to administer and read the mountain of echocardiograms that were supposed to tell how badly people were injured by the drugs.

Wyeth filed court paperwork last month seeking to have two law firms barred from representing people involved in the settlement based on what it alleged were attempts to “scam the system” by submitting unreasonable claims.

The trust overseeing payments has also sought sanctions against a company that administered echocardiograms, and sued a cardiologist, over allegedly improper diagnoses.

Marc Bern, a partner at one of the New York firms that Wyeth is trying to bar from representing patients, said the fraud allegations are a baseless attempt to limit the company’s liability. He also blamed the dispute on the structure of the settlement itself, saying its formula for evaluating is based on bad science.

“The way they have set it up, there is no way to objectively quantify any injury,” Bern said. “One auditor will look at a reading and say it looks like trace aortic regurgitation. Another will say it looks like mild aortic regurgitation.”

For parties to the settlement, the difference between the two can be thousands of dollars.

The fight isn’t unique. Asbestos litigation has been dogged by fraud allegations for years. Court records have indicated that thousands of people with lung ailments who sued, claiming it was caused by asbestos, have filed parallel legal claims saying their conditions were caused by exposure to the mineral silica.

In a recent study published in the medical journal Academic Radiology, researchers reviewed 492 chest X-rays that expert witnesses in court cases had said were evidence of asbestos-related ailments, and found that only 4 percent actually showed damage.

The American Medical Association has become concerned with the accuracy of expert testimony, and in December re-examined rules regarding proper qualifications and conduct for physicians who testify in medical cases. “What we are saying is that junk science has no place in the courtroom,” said the organization’s past president, Dr. Donald J. Palmisano.

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