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Wyeth Must Face Fen-Phen Negligence, Warranty Claims

A federal judge in St. Louis has upheld design-defect, breach-of-warranty and negligence claims against pharmaceutical giant Wyeth by a woman who says the diet drug combination fen-phen damaged her heart.

In denying the company's motion for partial summary judgment, U.S. District Judge E. Richard Webber said Wyeth had not provided evidence to show that plaintiff Virginia Cavender lacked any chance of prevailing on her claims.

Cavender sued Wyeth, previously called American Home Products Corp., in Missouri's St. Louis Circuit Court, claiming her use of the company's Pondimin (fenfluramine) with the generic phentermine left her with moderately severe aortic regurgitation.

Cavender says she used the therapy for two months in 1996 to help her lose weight, well before fenfluramine and Wyeth's Redux (dexfenfluramine) were pulled from the market in late 1997 due to reports of heart valve injury.

She alleges causes of action for breach of warranty, design defect, failure to warn and negligence.

Citing diversity jurisdiction, Wyeth removed the action to the U.S. District Court for the Eastern District of Missouri, where it moved for summary judgment.

Judge Webber denied the motion, holding that genuine issues of material fact remain as to whether the warnings Wyeth provided for Pondimin adequately alerted Cavender of the risks of heart damage.

The judge rejected the defendant's claim that because it made no representations directly to Cavender, she could not proceed with her warranty claim.

He said the law does not require a plaintiff to show she relied on a defendant's statements to pursue a breach-of-warranty claim.

The judge also said the "negligent failure to test" claim underlying Cavender's failure-to-warn allegation could advance due the lack of opposing evidence offered by Wyeth.

"Because the court has concluded that there is a genuine issue of material fact that the drug at issue was defectively designed, plaintiff will be permitted to submit her negligent-failure-to-test claim to the jury," Judge Webber said.

He cautioned Cavender that in order to prevail on the claim, she must show "what tests should have been performed and how any such testing would have prevented her injuries."

The judge said Cavender could also advance her design-defect claims over Pondimin because Wyeth had not offered evidence that there are no remaining factual disputes on the issue.

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