Primary Pulmonary Hypertension News - Menu Appeals Court Does Rare Reversal in Diet-Drug Case By JOSH GERSTEIN - Staff Reporter of the Sun The reversal by a New York appeals court is but a ripple in the dizzying eddies of litigation in the diet drug drama. The company that made the Fen-Phen combination, Wyeth, has set aside $22 billion for claims, attorneys' fees, and other costs of the legal morass. In the New York case, Parker & Waichman accused Napoli Kaiser & Bern LLP of deliberately shortchanging about 440 clients the Parker firm signed up for lawsuits over the fenfluramine-phentermine anti-obsesity medication, which was pulled from the market in 1997 after being linked to heart valve failures. In December 2005, a four-judge panel from the state appellate division unanimously reversed a trial judge's order allowing Parker & Waichman's suit to go forward. The appeals judges said the Parker firm was improperly trying to use the fee dispute to reopen the roughly 5,600 Fen-Phen cases settled by Napoli Bern for a reported total of $1 billion. "The real attack is to the underlying settlement, and, more particularly, whether defendants engaged in any fraudulent conduct," the judges wrote last year. They also noted that a legal ethics professor and a special master oversaw the deal. However, last month, in response to a request by the Parker firm, the appellate panel "recalled and vacated" its earlier decision. In the new ruling, the court echoed some of its earlier language about an "improper collateral at tack" on the settlement, but concluded that the Parker firm was entitled to pursue its claims that Napoli Bern mishandled cases, refused to split fees as promised, and caused some clients to seek new counsel, effectively cutting the Parker firm out. The judicial panel, which included three of the four judges who ruled on the case last year, said the Parker firm might even be entitled to details on Napoli Bern's handling of its own cases and those brought in by other firms. A professor at Albany Law School, Michael Hutter Jr., said the court's move to reopen and revise its earlier decision was exceptional. "It really is unusual," the professor told The New York Sun. "I would think a re-argument happens once every ten years. That may even be overstating it." Mr. Hutter said the judges deserved kudos for correcting their work. "It's good of the court to recognize we made mistake, instead of burying it," he said. An attorney for Napoli Bern,Christopher Hitchcock, said the court's revision was inconsequential. "It was a very slight modification of the earlier decision," Mr. Hitchcock said in an interview. "The claims for fraud are all still dismissed. What remains are a handful of claimed accounting issues." A founding partner of Parker & Waichman, Jerrold Parker, who in 2004 predicted to the Sun that Mr. Napoli's firm would "get fried" in the litigation, did not return a call seeking comment for this article. The dispute also shines a light on a practice in which tort law firms known as "advertisers"gather up "inventories" of hundreds or thousands of clients and then shuffle them to other firms, known as "warehousers," which combine the cases to negotiate a settlement. A partner at Napoli Bern, Paul Napoli, complained to the Sun in 2004 that the Parker firm wanted fees on cases for which the firm had done no work, beyond placing an advertisement for clients. Asked why his firm agreed to pay up to 50% of the usual attorneys' fees to a firm doing no work, Mr. Napoli said he had been tricked. Given typical contingency arrangements, Mr. Napoli's firm is likely to have received between $160 million and $330 million in connection with the settled diet drug cases. The Parker firm claims it got only $5.3 million for its cases. While a billion-dollar settlement for a single law firm may seem large, it could be argued that the company, Wyeth, got a good deal. In 2004, a Texas jury returned a $1 billion verdict on behalf of an individual former fen-phen user who developed a fatal lung condition.The company is appealing. Last year, a federal judge in Manhattan, Laura Swain, dismissed a class action lawsuit brought against the Napoli firm on behalf of the firm's roughly 5,600 Fen-Phen clients. Judge Swain said arbitration clauses in retainer agreements signed by the clients were enforceable and foreclosed the federal suit. A former associate at Napoli Bern also instituted a class action suit against Parker & Waichman, alleging that it cheated its clients by collecting referral fees when it had done to work. In 2002, a federal judge in Philadelphia, Harvey Bartle, ordered a halt to payments in thousands of fen-phen cases after evidence emerged that doctors, including one that prepared hundreds of reports for the Napoli firm, used improper criteria in assessing heart damage. Napoli Bern denied the charge and accused Wyeth of trying to back out of the settlement. More than two dozen people, including a Mississippi attorney, have been charged criminally in a federal investigation of fraud stemming from the fenphen litigation. A life that beats the odds By Warren King Seattle Times medical reporter Now: 20 years after transplant Doug Hoxworth, 59, of Wenatchee, with wife Susan and daughter Katy Boreson, left. His medical battles continue. Then: Before the operation Susan and Doug Hoxworth and Katy in 1985. "I don't have time to die," he said at the time. October 16, 2006 - Doug and Susan Hoxworth, at home in 1988 with three of their four daughters — from left, Lisa, 17; Sara, 12; and Katy, 8. On May 14, 1986, Hoxworth had received the heart and lungs of an 18-year-old who died in a motorcycle accident. WENATCHEE — Sometimes, when he least expects it, Doug Hoxworth gets a karate attack from behind. It's swift and sure, and comes complete with a yell. But it's not such a bad thing. Carson, Hoxworth's 4-year-old grandson, is the attacker, and the boy pretty much makes Hoxworth's day. So do his granddaughters, Mackenzie and Emma. Or just a call from one of his four daughters, or a poker game with his sons-in-law. "They're all pretty much everything for me," Hoxworth says of his doting family. They're lucky to have him. Twenty-one years ago, when they were living in Seattle, Hoxworth, his family and his doctors didn't know whether he would live even another year. He was only in his mid-30s but was threatened with a deadly lung disease that only a rare operation could cure. Today, Hoxworth is believed to be the fifth-longest survivor in the world of a combined heart and lung transplant, a procedure that is rarely performed anymore. He has lived more than 20 years with the transplanted organs. At the time of his operation, only 33 other people had undergone the procedure at Stanford University in California, where he had the transplant. In the U.S., 1,092 have now had successful heart-lung transplants since the first success in 1981. The longest survivor has lived 22 years. In the early days, the heart was transplanted along with the lungs because surgeons hadn't perfected a technique for lung transplants. Today, single or double lungs are transplanted for lung disorders, and heart-lungs only for patients with failure of both organs. For Hoxworth, now 59, the journey has been both joyful and excruciating. The years since his transplant have been full of the events and memories that a tight family and many friends bring but burdened with the exhaustion and frustration that come with pain and the side effects of medication. Most recently, he is fighting kidney failure and prostate cancer. His attitude has helped immeasurably in seeing him through. "You can't dwell on it and feel sorry for yourself. ... You just say, 'Whatever they throw at me, I can take it,' " Hoxworth says. Transplant experts say Hoxworth has it right. They credit that outlook and self-discipline, in part, to his long survival. "You have to give a lot of credit to his desire to live and the discipline of his lifestyle. He had to comply with a difficult medication regimen," says Dr. Bill Frist, who performed Hoxworth's transplant at Stanford in 1986. He is now a senator from Tennessee and the Senate majority leader. "I don't have time to die" Back in 1985, Hoxworth was a healthy, vigorous machinery-maintenance supervisor for a Bothell contact-lens manufacturer when he suddenly began tiring easily and having trouble breathing. He was diagnosed with primary pulmonary hypertension, in which arteries that carry blood from the heart to the lungs narrow, eventually crippling the heart. There is no known cause for the form of the disease he had. Doctors told him he probably had less than a year to live. A transplant was the only possible cure, they said. But a Seattle cardiologist didn't encourage the surgery because it had limited success. With little hope, Hoxworth and his family decided to take a last trip together to California. Along the way, his youngest daughter, Katy, then a gregarious 4-year-old, struck up a conversation with a woman beside a Disneyland hotel pool. The woman turned out to be the wife of a doctor — an expert on pulmonary hypertension. Within 15 minutes, the doctor was talking to Hoxworth and offering help. Soon he had Hoxworth try a drug he was researching, but it didn't help. So the doctor got him on the waiting list for the transplant at Stanford, the closest medical center to Seattle that was then performing the procedure. Hoxworth and his family moved to a small house in Sunnyvale, Calif., near Stanford, and waited for a donor. For eight months. "I don't have time to die," he said in a 1985 interview with The Seattle Times. "I've got too many things left undone ... and I've got a lot of fishing I want to do." Two potential donors came up. One turned out to have a lung infection. For the second, Hoxworth had a cold and couldn't have the operation. Finally, on May 14, 1986, at age 38, he received the heart and lungs of 18-year-old Michael Fencl, who had died in a motorcycle accident. Side effects of side effects Looking back, Frist and Dr. Bruce Reitz, who performed the world's first successful heart-lung transplant at Stanford in 1981, said several factors contributed to Hoxworth's long survival: the young age of the donor, Hoxworth's relative youth at the time and a good tissue match. And his medications have been essential. Hoxworth figures he has been on 40 different drugs over the years. They have included several drugs to prevent his body from rejecting the transplanted organs, plus others to fight infections, thyroid problems, depression, acid reflux and a variety of other problems. Now he takes medications to fight prostate cancer and kidney failure. "Sometimes I take one to counteract the side effects of the other to counteract the side effects of the other," he says, with only a slight chuckle. The drugs have also been the major factor contributing to his kidney failure. Prednisone, a powerful steroid to prevent rejection, has been the hardest to handle, he says. Side effects have included memory loss, blurry vision and moods that swing from quick temper to getting weepy over a simple phone chat with a loved one. He was never able to return to work. "Stubbornness can be good" Family has been key to Hoxworth's coping, he says. Wife Susan's support through the ups and downs has been unwavering. She has overseen his medications, understood his condition, fended off his anger. "Susan is my lifeline," Hoxworth says. Soon after the transplant, Susan took a job as an assistant in a Wenatchee dental office to help support the family of four daughters beyond Social Security and disability payments. As he recovered, Doug found his parental role increasing. He drove his children to their activities and helped negotiate their teen years. One of his fondest memories is playing golf with a 10-year-old Katy, who showed natural talent. After a round they would go out for lunch and chat and laugh together. "No matter how he feels, he doesn't complain," says Katy Boreson, now 26. Her experiences with her father helped her decide to become an intensive-care nurse at a Seattle hospital. His other daughters also marvel at how their dad has held up and made the best of the hand he was dealt. "He shouldn't be here, but he is," says his second daughter, Mary Gatewood, now a 34-year-old marketing specialist for a medical-device manufacturer in Kirkland. "Stubbornness can be a good thing. We don't give enough credit to what our minds can do." Living in the present Hoxworth says his ability to keep his problems in perspective has helped keep him going. The small stuff, he says — a stubborn car engine or running late to an appointment — fades like the wind. Even the big problems — his recent life-threatening illnesses or the family's current financial troubles — he mentally puts aside. He'd rather live in the present. At the same time, though, setting goals has been vital. First, it was living to see all his daughters graduate from high school. Then it was college. Then it was to see how they turned out as adults. Now he's shooting to make his 60th birthday in May. The Hoxworths knew several other transplant candidates who never made it. Doug Hoxworth calls his transplant "the luck of the draw," but he has been an exceptionally conscientious patient in taking care of himself, his wife says. And then there's Michael Fencl. Hoxworth was not told by doctors who his donor had been. But one of Fencl's friends knew he had been an organ donor, and she attended the same California high school as Hoxworth's daughter Lisa. The friend told Lisa she knew the identity of her dad's donor. The Hoxworths arranged through a television crew doing a documentary on transplants to meet Fencl's mother. The family still remains close to his mother. "I think about him all the time," Hoxworth says. "I talk to him. I say, 'Thank you, Michael.' " Warren King: 206-464-2247 or |