It feels like 20 years ago when we were doing almost monthly fen-phen diet drug trials in the Philadelphia Court of Common Pleas. The old timey-air-conditioning units in City Hall, along with subways rumbling underfoot, occasionally drowned out the testimony of plaintiff experts taking both scientific studies and internal company documents out of context. That is to say, bad infrastructure was more reliable than Philly CCP rulings in keeping junk science away from the jurors’ ears.

These were cases where the plaintiffs opted out from a huge, matrix settlement.  By and large, in those cases plaintiffs claimed that the diet drugs caused heart valve damage, resulting in shortness of breath and the risk of open-heart valve replacement surgery. City Hall courtrooms rung out with the clickety-clack of cowboy-booted Texas plaintiff lawyers strutting around lecterns as they represented women (mostly, it seemed, from Utah) who bemoaned their reduced abilities to snowmobile and hunt elk. You could watch in real time vast indifference pass across the faces of Philly jurors. To be sure, in some of those trials the juries banged the defendant with large dollar verdicts, but more often there were either defense verdicts or, in some ways more satisfying from the perspectives of appellate prospects and sheer comedy, whimpering verdicts awarding plaintiffs under ten thousand dollars.  Our guess was that the jury was calculating expenditures for dental antibiotics for the rest of the plaintiffs’ lives.  After those sorts of minimal verdicts, our chief legal strategist would gleefully calculate how the plaintiff expert hotel bills alone dwarfed such “awards.”  

Good times (mostly). 

Anyway, we thought fen-phen litigation was firmly in our rear view mirror.  It’s over, right?

Wrong. 

Today’s case, Anderson v. Wyeth LLC, 2025 U.S. Dist. LEXIS 208332 (S.D.N.Y. Oct. 22, 2025), is a leftover fen-phen case.  In Anderson, unlike the heart valve cases, the plaintiff alleged that her use of diet drugs caused her to suffer primary pulmonary hypertension (PPH). PPH is a serious lung disease. We heard a plaintiff expert explain that if he had to make a list of ways to die, PPH would be on the bad end of the list.  He called it slow motion suffocation. Most of those cases settled. 

In Anderson, the plaintiff was alleging PPH almost 30 years after ingestion.  The plaintiff took the diet drugs back in 1996, when she was 18 years old.  Talk about latency! Fenfluramine (the “fen” half of fen-phen) was withdrawn from the market in 1997. The settlement was in 2000. Anderson is an outlier. 

The defendants moved to dismiss the complaint on multiple grounds, all of which, according to the court, had “merit.”  Although the plaintiffs (the wife and her husband, who claimed loss of consortium) were no longer living in Ohio, that was where the drug was allegedly prescribed and consumed, so that state’s law applied to this case. Let us take a moment to explain.  New York, as the forum state, supplied the choice of law rule. There was an actual conflict of law among the four possibilities: Ohio (where the allegedly tortious acts occurred), Idaho (where the plaintiffs currently resided), New York (where the corporate defendants were citizens), and New Jersey (where one corporate defendant had its principal place of business). Under New York choice of law, the location of the tort was key, so Ohio law governed. 

That choice of law mattered quite a bit in this case, because it meant that the complaint had to travel under the Ohio Product Liability Act (OPLA).  The OPLA furnishes the exclusive remedy. But the plaintiffs’ complaint did not even mention the statute. That omission does not mean that a federal court is free to transmogrify the causes of action into Ohio law; it means they must be dismissed. Both Ohio state and federal courts “have held that a complaint pleading a claim pursuant to the OPLA must in fact make reference to the applicable provision of the OPLA.”  If we were handing out practice pointers to plaintiff lawyers … but we’re not. 

Several claims in the complaint were precluded by the OPLA, which abolished all common-law causes of action, and therefore were dismissed by the court. All that being said, the court dismissed these claims without prejudice, permitting the plaintiff to take a shot at repleading in a statutorily appropriate fashion. 

The court also dismissed the punitive damages claim. The reason for such dismissal was that under “Ohio law, punitive damages are not recoverable in pharmaceutical product liability actions unless the FDA has made such an express finding of fraud by the defendant in connection with the marketing of the drugs at issue.” The complaint in Anderson pleaded no such finding. The court seems to come oh-so-close to dismissing punitive damages with prejudice, because it doubted that the FDA ever made the requisite fraud finding, but ended up “assum[ing] that, when they file their amended complaint, the Plaintiffs will either plead the requisite FDA finding or refrain from releasing their request for relief in the form of punitive damages.” 

This is not the first time this blog has addressed the OPLA’s abrogation of common law causes of action. See here, for example.