<<Self-Made King Of Viagra Suits?>>
One lawyer takes the lead in suing Pfizer; others remain cautious.
BY BOB VAN VORIS
NATIONAL LAW JOURNAL STAFF REPORTER
The National Law Journal (p. A06)
Monday, August 10, 1998
WITH ALL THE hoopla generated by the anti-impotence drug Viagra since its approval by the Food and Drug Administration March 27, it was only a matter of time before plaintiffs' lawyers took notice. New York lawyer Ronald R. Benjamin recently filed five personal injury suits against Pfizer Inc., the drug's manufacturer--and he promises more.
But while other plaintiffs' lawyers say they are giving Viagra a close look, many say it is too soon to tell if Viagra will be the next big issue in mass tort litigation.
Mr. Benjamin, who has four other lawyers in his firm, The Law Offices of Ronald R. Benjamin, said he has received calls from other lawyers interested in suing or referring Viagra cases to him. He said he plans to file other cases, including three or four wrongful-death claims.
Mr. Benjamin faults the testing and marketing of the drug, which has been hyped as "a wonder drug, a panacea for impotence," he said. "It's difficult to say how they can justify saying this is safe for the general population."
Cautionary Notes
But the New York firm Rheingold, Valet & Rheingold, heavily involved in fen-phen and other drug products liability cases, is taking a wait-and-see approach on Viagra. "I don't think there's enough information out there showing that there's a danger to it," said partner Hunter J. Shkolnik. "Here I think it's more about jumping on the craze."
Two of the most reliable heralds of mass-tort litigation also reflect a cautious interest on the part of plaintiffs' lawyers.
"We saw that there was so much being written about Viagra, so we thought we would put that all in one place," said W. Thomas Hagy, publisher of Mealey's Publications Inc., a King of Prussia, Pa., company that began publishing Mealey's Viagra Watch in June. Mr. Hagy said the publication's title was chosen carefully, to reflect the interest of Mealey's target audience of lawyers, insurers and drug industry executives, but to avoid signalling a prediction that Viagra will be the next big mass tort.
"It's a watch, like a tornado watch," he said. "We see clouds on the horizon. But how often does the tornado actually take your house down?" Interest in Mealey's Viagra Watch has so far been cool, said Mr. Hagy.
Although numerous plaintiffs' lawyers say they are keeping an eye on Viagra, The Association of Trial Lawyers of America has not formed a Viagra litigation group, according to a spokesman. ATLA litigation groups formed to address other medical products, such as fen-phen, breast implants and Norplant, permit members to network and exchange information.
The first Viagra lawsuit was filed by Diego Padro, a retired, 63-year-old New York man who claims the drug caused him to suffer a heart attack. Padro v. Pfizer Inc. (Sup. Ct. N.Y. Co.). Messrs. Benjamin and Padro announced the $85 million lawsuit, which, according to Pfizer at a press conference July 16, was the first to charge personal injuries resulting from the use of Viagra.
Three more lawsuits, all alleging heart damage, were filed in quick succession. Then, July 27 Mr. Benjamin called another press conference to announce he had filed a $110 million lawsuit for Joseph Moran, a New Jersey car dealer who claims Viagra caused him to see blue lightning coming from his fingertips, at which point he blacked out and crashed his 1994 Thunderbird into two parked cars. Moran v. Pfizer Inc. (Sup. Ct. N.Y. Co.).
So far, Pfizer has kept a low profile regarding the lawsuits, generally declining to comment. But on the day the Padro lawsuit was announced, Pfizer faxed to the press copies of an ad Mr. Benjamin had taken in the New York Post seeking clients claiming Viagra injuries.
"From the way in which this particular plaintiff's lawyer has advertised for Viagra cases and handled the press conference relating to the purported suit, this case appears to be more in the nature of lawyers' advertising than good-faith litigation," said Pfizer in a statement. Defense of the personal injury cases will be handled by New York's Kaye, Scholer, Fierman, Hays & Handler L.L.P.
The FDA reported 39 patients in the United States who died after taking Viagra, through June, a time period in which more than 2.7 million Viagra prescriptions were filled. Mr. Benjamin said he thinks the number of adverse reactions may be vastly understated.
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