Fen-Phen Case Cannot Proceed in Absence of Actual Injury
Description Appeals court upheld dismissal of a proposed class action suit against the makers of the diet drug Fen-Phen, which has been linked to heart problems. The plaintiff had suffered no actual harm, she based her claim on prospective injury. That does not provide a cause of action.
Topic Torts
Key Words Products Liability; Class Action; Prospective Injury
C A S E   S U M M A R Y
Facts Wood took fenfluramine, an appetite suppressant approved by the FDA in 1973. It became popular in the 1990s; when taken with phentermine it is referred to as "Fen-Phen." The FDA never approved the use of the drug combination, which was ordered off the market in 1997. Wood contends that the maker knew as early as 1995 that the drug could cause heart problems, but continued to promote it. Wood sued to be representative in a class action on behalf of all Kentucky residents who had taken the drug. She contended that she (and others) suffered "significantly increase risk of serious injury and disease" from having taken Fen-Phen. The trial court dismissed the suit. She appealed.
Decision Affirmed. Wood could not bring a claim against the drug maker because she could not show that she suffered present physical harm as a result of taking the drug. Mere ingestion of a toxic substance does not constitute sufficient physical harm upon which to base a claim for damages. Until plaintiff can show harmful result from the exposure, the cause of action has yet to accrue. A cause of action does not exist until the material in question causes an injury that produces loss or damage.
Citation Wood v. Wyeth-Ayerst Laboratories, 2000 WL 1610658 (Ct. App., Ky., 2000)

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