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Dispensing with the Truth The Victims, the Drug Companies, and the Dramatic Story Behind the Battle Over Fen-Phen
By Alicia Mundy
St. Martin's Press Copyright © 2002 Alicia Mundy
All right reserved.
Can I look forward to my waning years signing checks for fat people who are a little afraid of some silly lung problem ...?
--E-mail from a Wyeth-Ayerst administrator, Kay Anderson, to Dr. Patty Acri, product labeling director, October 3, 1996
Alex MacDonald had just escaped from the crowded parking lot at the Garden in Boston, where several thousand children had been screaming happily at "Disney on Ice," when his cell phone rang. He wasn't going to answer it.
At that moment, he and his youngest daughter, Emma, were doing Daddy Time, giggling over the spectacle of Mickey and Goofy and Beauty and the Beast on skates, twirling to canned music under a hundred pounds of sequins. Alex was searching the night for snowflakes for Emma. Alex's wife, Maureen, had their oldest girl, Nora, back at the house waiting with hot chocolate. "This'll just take a minute," he promised solemnly as he pressed the answer button.
It was his partner, Steve Rotman. "Mary Linnen just died."
"What?" Alex briefly lost control of his Toyota Celica.
"She died this afternoon," Rotman explained. "Her father wants you to call him."
"Wait, wait," said Alex, steering the car toward the Cambridge exit. "You must have heard him wrong. She just got out of the hospital today," he sputtered. "I just talked with her two days ago." And then he remembered what she told him when she called, nearly hysterical. She had foreseen her own death.
As Alex turned into the driveway of his yellow clapboard home off Storrow Drive, one of Cambridge's tony addresses, it hit him. He had never lost a client like Mary Linnen. He did divorces--calamitous, horrible ones where people certainly were injured, but nobody ever died in them. This was so, well, unfathomable. Doctors lose clients--lawyers don't lose clients.
Dialing into his office phone, Alex heard the broken voice of Thomas Linnen on his voice mail. "Alex, Mary died today."
Maureen poured Alex a drink after she put the girls to bed. He was in shock. "I thought she was getting better," he said, starting to cry. "They said she was stabilizing."
Maureen sighed. "You know," she explained quietly, "this is what I was trying to warn you about. Doctors can only do so much with this. Mary was in bad shape."
Maureen Strafford was a well-known cardiology anesthesiologist specializing in pediatric cases. A former med student at Boston U., she had worked alongside prominent doctors from Harvard and Yale. She'd been Alex's sounding board on Mary's case from the first day.
When Alex was initially visited by Mary Linnen's father, he told his wife that night about the new client with "pulmonary something."
"Pulmonary hypertension?" Maureen asked. "Oh, my God, did she take those diet drugs? Alex, she's going to die."
But no matter how many times Maureen had said, "Alex, with severe pulmonary hypertension, they all die," he hadn't believed her.
Maureen was well versed in lung disease problems and Fen-Phen. In fact, she had interned at Columbia with a woman who was now a leading cardiologist, Dr. Robyn Barst. Maureen had warned Alex: Once they're on the pump--the Flolan contraption--it's usually just a matter of "when."
After calling Mary's distraught mother and angry father, numbly expressing sympathy, Alex sat down on the sofa and just looked at Maureen. "She was so scared of dying," he said. Maureen nodded, "You told me."
Lawyers always say, like some cheap cliché, that some particular client or case changed their life. After the Linnen case, Alex didn't hesitate to say it to anyone who asked, remembering the oddity of the Disney's sequined Alice in Wonderland skating that night, and the rabbit hole he fell down hours later. The Linnen lawsuit that followed thrust him into the strange, warring world of tort litigation on a scale neither he--nor, for that matter, anyone else--had ever seen.
Not that he hadn't yet tasted blood in massive corporate cases. As a rising star, Alex MacDonald was already the label on a file at the Boston Globe. He'd nailed five doctors at a local hospital--a major coup in Boston--in a malpractice case, at the time the largest wrongful death settlement in Massachusetts history.
Not bad for a kid from Boston's backwater. In fact, Alex was just a couple of miles short of being a Southie, like the kid in Good Will Hunting. He was working class, a blue-collar boy from Dorchester, an immigrant division that hadn't seen much action since Moby Dick was a guppie. His father, a farmer from Nova Scotia, and his mother, an immigrant from Prince Edward Island, had met and married in Boston in 1940. His dad became a union organizer, his mom a domestic, and between them, there were only five years of formal elementary education. Their hopes that Alex would become the first in the family ever to get to college wavered when they saw him spending so much time as a teenager playing guitar in a rec-room rock band that called themselves, appropriately, The Poor Boys. They didn't comprehend fully the allure that "performing" had on their son.
But talk was really Alex's forte, and the young debater won a scholarship to Boston University. It was a joyous day in the MacDonald household when Alex was accepted at Harvard Law School; it was also a terrifying one, since nobody knew how he'd pay for it. A restricted scholarship footed part of his bill, and he worked after classes at a local mental hospital. It looked like he'd have to stretch out his last year--maybe drop out and come back, when a teacher pointed him to the book of bequests at Widner Library. It was a huge tome, dedicated mostly to the scions of Yale, Harvard, and Beacon Hill, and took hours to check. But there, on the second-to-last page, Alex found the "William Stoughton Bequest," a 250-year-old grant solely for students from the towns of Dorchester or Milton.
It was 1976, the Bicentennial Year, when he graduated, and then almost blew his chance for a job. "I wanted to do public defense work," he said, unintentionally evoking the tradition of the "Catholic guilt career choice." You've made it, now go save the world.
The group of Harvard grads willing to go into legal services was quite short. Harvard may have been a hotbed of idealism in the '60s, but these students weren't stupid. While he watched his classmates land at swank firms in Boston, New York, Philadelphia, and Chicago, Alex was pushing for a $10,000-per-year cubicle in a public defenders' office. Philadelphia Legal Services finally came through, about the moment that Alex's instinct for survival kicked in. It was all well and good to want to do good. But if he couldn't make a living, he'd never get that chance. He was about to leave for Philly when he recalled, "I looked in the mirror and said, 'What the hell am I doing?'"
He rushed to the placement office and grabbed one of the few jobs left, a firm of old blue bloods, Hemenway & Barnes. Old Alfred Hemenway had been a pal of President William McKinley.
For the next five years, Alex was doing stale corporate litigation and divorce work for the rich and regrettable when he was called by a senior partner who asked him to clean up a minor matter involving their clients the Cabots, one of Boston's First Families. Alex had been weaned on tales of the local leftovers from the Mayflower, the Lodges and the Cabots. The saying goes: The Lodges speak only to Cabots, and the Cabots speak only to God.
The young caretaker on the Cabot estate, living in the carriage house, had gone to check the hot water heater, which exploded in his face. At the sound of the blast, his wife, eight months pregnant, rushed to the top of the stairs to the basement just in time to see her husband engulfed in flames. The Cabots wanted a personal injury lawyer to sue the hot-water-heater maker. Perhaps young Alex, a member of the old family retainer firm, could suggest a PI attorney to whom to refer the case.
In 1981 in Boston, personal injury law was considered the proctology of the profession. Alex would be doing his firm a favor by disposing of the matter and keeping Hemenway & Barnes away from the sordid nonsense. But after interviewing the fire marshal, Alex was intrigued--the fireman indicated that the heater was definitely the culprit. Divorce and real estate work were leaving Alex stale, and this sounded different. It sounded like a real case where there were two sides and they fought each other, instead of gently negotiating into paralysis. He asked the senior partner to let him do the job.
The heater, Alex learned, had been the subject of an ad in Parade magazine from the Consumer Product Safety Commission and had been involved in more than ninety other accidents. Conveniently for Alex, its maker had deep pockets.
Alex went to visit the caretaker, who was holding down a bed in one wing of a local hospital while his wife, in labor, was a patient in another. In his mid-twenties, the caretaker, like Alex, had a sideline in a local rock group, and Alex told him: "I'm gonna make two predictions: You're gonna be wealthier than you've ever dreamed. And your band will play at my wedding."
From his earliest days, Alex had been bulging with braggadocio. It was one of his methods to shore up confidence in himself--by backing himself into a corner, he had to deliver. He made it part of his game in major cases, bragging up front to the other side to screw with their minds.
But in this case, he was trying to reassure the young caretaker, who was certain he'd die right there in the hospital, a pauper with a new baby. Fortunately for both men, both boasts came true. The large firm representing the heater's manufacturers found itself besieged by weekly requests for documents and depositions; in August 1983 they paid a settlement almost twice what Alex had originally anticipated.
Alex had been dating Maureen Stratford, a young doctor in New York with a wild laugh whom he'd met at a local wedding on Memorial Day weekend in 1980. He'd promised to call, and he did--a full twelve months later, on Memorial Day weekend. Maureen had just joined the staff at Columbia-Presbyterian Hospital as a new pediatric cardiologist and was not returning to Boston anytime soon. Come visit New York, she suggested. Alex shivered. "New York? That's like going to the moon."
But he went anyway, unable to resist (he would tell their children later) her bold red hair, her brazen humor, her watered-blue eyes, and "her sexiest organ--her brain." Two months after the Cabot caretaker case settled, the huge bonus for Alex provided a lavish wedding for 250 guests. The caretaker and his band, and a DJ, were joined onstage by Alex during the evening. It was the only time in its 150-year history that the elitist Harvard Club on Commonwealth Avenue received complaints from its Back Bay neighbors about the insufferable noise.
Alex had switched firms in 1983 to Harrison & Maguire, which handled mostly large real estate litigation. But he couldn't stay away from medical suits, and he'd soon taken on a client, Vincent Napolitano, who was president of Gould's Pump Company, a New York corporation on the Fortune 500. It would become the largest wrongful death recovery case in Massachusetts.
Napolitano--had Alex had a chance to know him--was Alex's kind of guy. A blue-collar baby from New York's backside, he'd gone to the top but never forgot being on the bottom. The multimillionaire was loved in the community and among his workers--once he sent an employee's little boy on his corporate jet down south for leukemia treatments.
One night in August 1984, at a restaurant, Napolitano got indigestion and became the victim of ambulance roulette. The emergency med techs would not take patients through the Sumner Tunnel to the closest major hospital, and instead took him to a local clinic in Winthrop. Napolitano suffered an allergic reaction to the anesthesia administered during a minor procedure to open up his breathing tube. He died on the operating table, one day short of his fifty-fourth birthday.
It was during the Napolitano case that Alex discovered the most important member of his legal team: his wife. Alex brought the medical records home one night and Maureen grabbed them--anesthesiology was her residency specialty, and she told Alex, "I know what he died from." Maureen's own mentor reviewed the files and told Alex, "Congratulations. This is the worst case of medical malpractice I've ever seen." Over the next five years, Maureen was Alex's medical tutor before all his depositions. Once, a defense attorney took Alex aside and confided his firm's amazement at Alex's ability to ask and understand a lengthy series of complicated medical questions. Alex told the lawyer, "The secret is, I'm Howdy Doody." He explained that Maureen, his doctor wife, was like Buffalo Bob, pulling all the strings. "No one sees her lips move when I talk."
Napolitano, Alex figured, was the kind of man who deserved all the drama Alex could provide. "All trial attorneys are frustrated actors," Alex conceded, and he was Shakespearean in his frustration. But he was also an ersatz director. Preparing for one deposition, Alex had a camera crew film the operating room as it was set up when Napolitano died. There was only silence as the camera slowly panned around to the doors, and then up an adjoining wall where hung two hundred vials of the antidote that could have saved Napolitano, if only the doctor had known what he was doing. The case settled in 1989, before the jury was impaneled, for roughly $4.6 million--a first, and an unheard-of award within Boston's temple of medicine.
In 1993, Harrison & Maguire merged with Robinson & Cole, one of the most prominent legal organizations in New England, the firm that Samuel Clemens-Mark Twain had used for literary and legal issues. With almost two hundred lawyers and offices in Connecticut and New York, it was the epitome of a staid, upper-crust firm to which Harvard students aspire. The new firm's Massachusetts offices took up the twenty-fifth and twenty-sixth floors at One Boston Place, around the corner from the Revolutionary-era Old Christ Church, where they can be glimpsed in "B" shots of The Practice and Ally McBeal. Once again, a band of blue bloods found themselves harboring a closet medical malpractice maven, wandering incognito in the fields of the Lord.
It was the perfect life. Alex and Maureen moved into a historical Adams colonial house in Cambridge that had been the home of Helen Keller and her teacher Annie Sullivan when Keller attended Radcliffe. They bought a place on the Vineyard, in Chilmark, where the elite turn "summer" into a verb. His neighbors in Cambridge and on the Vineyard included Nobel scientists, the literati, actors, politicians, and the demigod of the law, Alan Dershowitz. Alex had taken a course once from the master--now he and Dershowitz were drinking buddies; well, if drinking includes Cabernet tastings. Dershowitz had even accepted suggestions from Alex for one of his novels, and afterwards, readers of The Advocate's Devil found a character named Alex O'Donnell from the mean streets of Dorchester.
Mornings were father-daughter time, as Alex fed and dressed their two blond little girls while Maureen was in surgery at the hospital. Maureen's practice grew and she continued teaching, her favorite aspect of the job. Alex spent off hours toying with an unfinished novel. "I'm gonna overtake Alan [Dershowitz]," he joked. "If he can sell fiction, so can I."
Alex enjoyed tweaking his Brooks Brothers colleagues and the opposition by continuing to sport the lengthy locks he had cultivated in college. Blondish brown and parted in the middle, with his thick mustache and long goatee trimmed to a point, they made Alex resemble one of those portraits of Jesus seen on the living-room walls of the rough Catholic neighborhood where he'd grown up. Hairstyle as statement, one way of saying that despite his current plush lifestyle, the idealist had not sold out.
You could look down on the Charles River from Alex's expansive office windows. His walls were cluttered with photos of himself with Dershowitz in Paris and with famous politicians, including Bill Clinton. There was a separate photo of him with Hillary Clinton, obviously lecturing her on the fine points of the law. He'd become moderately famous, and his ego had grown along with his girth, though the ego, it should be noted, was definitely in the lead. One of the photos showed him singing into a mike with a Vineyard neighbor--Carly Simon. The caption read, "You're So Vain."
It fell to Maureen to let the air out of Alex's balloon occasionally. She was, Dershowitz laughed, Alex's perfect foil. When his ego ran rampant, she would put up a speed bump. If he got too pedantic at cocktail parties, she'd come up behind him, prod his side, and tweak him verbally. And she would not let him forget why he had become a lawyer.
"Alex loves the fight, the good guys against the bad guys," she explained, adding that she blamed "too many Saturdays with his brother at the movies watching westerns." Alex just wanted a fast horse, a big gun, and a white hat. "He loves being on the 'right' side in a case," she said. The Napolitano case--he was frenzied, she said. He was so upset that these people had done something so wrong. "He has to have that kind of case to keep going," she laughed, "and then you can't stop him."
But he hadn't had that kind of case in several years, and he was edging perilously close to complacency, which Catholic guilt abjures.
Then the Linnens walked into his office in November 1996.
At the time, they thought all they needed was someone to help get Mary on worker's comp to defray her medical costs. Mary signed the contract with Robinson & Cole and introduced herself to Alex by phone. But about a week later, Mary was back in the hospital and scheduled for surgery and the insertion of the heart catheter. She was much sicker than they had realized. In a call to Alex, Mary whispered urgently, "Do everything you can to get these drugs off the market." That might be a little difficult, Alex thought, with hundreds of millions of dollars at stake for the pharmaceuticals. But what the hell. "Yes, I will," he promised.
But before he faced the pharmaceuticals, he'd have to face his own partners. The case would need fronting, big money to support any litigation before the verdict. In the Cabot caretaker case, the old-line firm found it distasteful to write a check for $5,000 to cover costs. Alex wondered what Robinson & Cole was going to do when he asked for $450,000 up front for experts and depositions for the Linnen case.
Luckily, Robinson & Cole was flush with capital. It gave Alex what he had always wanted--the power of an old-line law firm with the resources of a megalithic corporation--enough to go toe-to-toe with any major defendant and its phalanx of retainer lawyers. "This is what I can give you," Alex said to the Linnens. Of course, he didn't anticipate that he'd need to call on those resources so soon.
There was much to do the morning after Mary's death, and after a sleepless night, Alex could not focus. But after calling his partners, he zeroed in on the most urgent need: an autopsy. He hadn't planned for one, but Maureen had several suggestions for the pathologist. An autopsy would be one of the key pieces of evidence in a wrongful death suit, and this one had to be perfect--he'd known Mary, laughed with her, let her cry to him. An autopsy would show how she died, suffocating, and might indicate why.
He was kicking himself. Instead of showing how she died, he should have taped Mary herself, showing how she lived. He should have brought in the camcorder and done a "day in the life" tape, following her as she washed her tube, measured medicine with her failing eyesight, tried to insert a tube without spurting blood on herself and the furniture, and how she had to rest constantly, her hands and feet bloated up to the size of giant pillows. That's what he should have done, dammit. Now it was too late.
Mary Linnen's cardiologist had said that PPH survival rates were about four years and Mary had developed the disease the previous summer. Alex assumed that meant she had two or three years left. He shouldn't have assumed anything, he swore silently.
But he'd make it up to her. Luck, in such short supply in Mary's life, came through after Mary's death. The family, which recognized the importance of an autopsy, had been prepared to pay for one that they could use in court. Still, a contracted autopsy would carry some bias--like a paid expert.
The night Mary died, because of local medical interest in rising numbers of PPH cases, the Massachusetts coroner's office became involved. They arranged the postmortem, and they drew on one of the most prominent medical examiners in the field. In essence, they were giving their stamp to a critical review that determined Mary Linnen had died of pulmonary hypertension--caused by the ingestion of diet drugs.
All funerals are hell, but the tragic scene at St. Paul's Cemetery in Hingham was the most devastating Alex had attended. Perhaps it was the terrible irony that she'd just been released from the hospital, thinking she was doing better. Her mother and father, in their early seventies, looked much older. They seemed dazed as they accompanied the casket down the aisle at the church--but Mary Jo stopped long enough to hug Alex and Steve Rotman standing at the back. Mary's sister Nancy, who had cared for her in her last months, was nearly inconsolable and guilt-ridden; she had been in California when Mary died, having been assured by Mary, "I'll be fine. Go on."
And Tom Caruso. He'd been crying at the wake, and by the morning of the funeral his eyes were almost too puffy to open. At the gravesite, he grabbed Alex, holding on as if for his own life; that was when Alex smelled the alcohol on Tom's breath. Oh, God, Alex said to Maureen afterwards. I think Tom fell off the wagon, and now he's falling down a deep, deep well.
After the EMS left with Mary's body, Tom went on a bender that lasted twenty-four hours. He'd been calling Mary's doctors, crying, yelling, blaming, begging to die with her. Dr. Michael Landzberg had taken one of the calls and immediately telephoned a colleague who was a psychologist, trying to link him up quickly with Tom. He was concerned that Tom was so unstable at this point that he might hurt himself. But Tom didn't take any help and went instead back to his old friend, liquor. Within days, he'd been in a car wreck and charged with driving while intoxicated.
It wasn't hard for Alex to collar a friend to take Tom's case, but the hard part was telling Tom what would come next. Because of his juvenile record and previous DUI history, there was no way he'd avoid jail. Mary was barely in her grave when Tom called Connie Lovejoy and told her he was going away. "Come and get Dustin," he asked her, crying loudly into the phone that he had let Mary down.
The catastrophe with Tom, coming on the heels of Mary's sudden death, presented another problem for Alex, who hadn't even filed his suit yet. Tom would be the witness to Mary's terrible death--and he was in prison. How would that look to a jury?
The situation hit both Alex and the Linnens like the second half of a one-two punch. The final insult was the belated letter that came for Mary from the Social Security Administration, denying her disability claim and urging her to find work as a telephone solicitor. The parents quickly finished packing up their old home and moved to Florida. Alex was left with a simple standing order from Mr. Linnen: "Try this case."
Back in his offices, Alex began assembling a team to take on Wyeth-Ayerst, a division of American Home Products, the makers of Robitussin and Advil, and one of the largest pharmaceuticals in the world. But a more daunting prospect was taking on some of the elite members of the very prestigious, very closed medical community in Alex's backyard.
Two such members had already popped up in the Linnen case. One was Dr. George Blackburn, of Deaconess Hospital, part of Harvard Medical School. Blackburn was considered one of the leaders in the obesity field and a member of the board, so to speak, of what one could call "Obesity, Inc.," the national network of drug companies, obesity interest groups, and medical consultants who pushed for pharmacological aids in weight loss.
It was becoming a billion-dollar business. Blackburn had made a lucrative practice of obesity work, producing a major study called The Fenway Study on the importance of diet drugs in weight loss.
Furthermore, Blackburn was one of the main reasons why Mary Linnen was even able to take Fen-Phen. As the diet drug mania was sweeping the country, he helped lead the charge to get anorexic drugs approved for prescription in Massachusetts, where they had been illegal. The drugs were approved by the commonwealth on February 9--just two and a half months before Mary Linnen began taking them. Alex heard from Maureen's circle of friends that Blackburn had done some consulting for Wyeth and AHP. But for how long? Was his nutrition clinic at the elite Deaconess Hospital supported by Wyeth?
Excerpted from Dispensing with the Truth by Alicia Mundy Copyright © 2002 by Alicia Mundy. Excerpted by permission.
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