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Medical Monitoring

THE AMERICAN HOME PRODUCTS PHEN-FEN SETTLEMENT DOES NOT SUPPORT JUDICIAL CREATION OF MEDICAL MONITORING

By: Victor E. Schwartz*

As reported on October 7, 1999, the pharmaceutical company American Home Products Corporation (AHPC) agreed to spend up to $3.7 billion to cover both medical monitoring and personal injury claims for all persons who took either Pondimin (Fenfluramine) or Redux (Dexfenfluramine).

The proposed agreement still must be approved by Judge Lewis Bechtle of the U.S.District Court for the Eastern District of Pennsylvania. The validity of the settlement may be challenged, and that challenge may ultimately be resolved by the U.S. Supreme Court.

Some in the defense community have raised the concern that the settlement represents an acknowledgment of the validity of medical monitoring claims. Because of our very clear position against judicial creation of medical monitoring, the settlement also has been of concern to some members of the American Tort Reform Association.

I have a minister friend who once observed about a passage in the Bible, “Something not in context is pretext.” The same may be said of the AHPC settlement: When the terms of the settlement are considered in context with the litigation, it is crystal clear that the settlement does not acknowledge judicial creation of medical monitoring claims. Any claim to the contrary is merely pretext. ATRA’s opposition to medical monitoring claims created by courts is based on the fact that (1) judges are not in a good position to establish the appropriate “triggers” for medical monitoring; (2) courts cannot assure that money is used for medical monitoring (for example, the Supreme Court of West Virginia in Bower v. Westinghouse has authorized lump sum award payments to claimants; (3) if liability law is to be stretched to make awards to people who are not hurt, there should be an assurance that there is no other reasonable source for medical monitoring; and (4) the legislature, not the judicial branch, is the appropriate branch of government to resolve these and other key problems with medical monitoring claims.

In that regard, it is highly relevant to note that the AHPC settlement does not generally provide money for medical monitoring to claimants. What it does provide to users for two months or more of either Pondimin or Redux is an opportunity to have an echocardiogram test. Contrary to judicial decisions of great concern to ATRA members, such as the Supreme Court of West Virginia’s Bower v. Westinghouse decision, money does not flow to plaintiffs “to use as they wish.” Of equal importance is that the focus of the AHPC settlement is on one test and the purpose of the test is as much a screening device for the validity of claims as it is for medical monitoring.

Unlike general monitoring claims, in the AHPC settlement, medical monitoring is provided in the context of a settlement where it is important to determine who should be entitled to larger awards. An echocardiogram is an appropriate means for making that evaluation.

The AHPC settlement does not focus on long-term medical monitoring; in the context of that settlement: it is an unusual situation where one test, an echocardiogram, can indicate whether a person might have the possibility of having been injured. If the echocardiogram indicates no heart valve regurgitation, that is the end of the person’s claim within the context of the settlement.

In their attempts to persuade courts to adopt medical monitoring, some plaintiffs’ lawyers may ask courts to take judicial notice of the AHPC settlement. Nevertheless, facts show no such acknowledgment in the context of the settlement. This is important for both courts and ATRA members to appreciate as the battle over judicial monitoring continues.

The next battleground for medical monitoring is likely to occur in Nevada. ATRA has filed an amicus brief, along with the Product Liability Advisory Council, opposing any judicial creation of medical monitoring. AHPC’s settlement is unique in its facts and does not pave the way to judicial recognition of what is a wholly unfounded tort. When people have no current injury, their remedy, if any, should be addressed by the legislature and not created by activist courts.

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