Armed with the cardio-pulmonology report, the PDR, and the autopsy, Alex filed the first wrongful death suit in the Fen-Phen wars on May 5, 1997.
Immediately afterward, he moved for a temporary restraining order (TRO) against the companies, demanding that Wyeth, American Home Products, and the distributors of phentermine all protect their records, files, and e-mails. From May 6 on, they would not be permitted to destroy anything.
MacDonald’s move hit Wyeth’s local attorneys like a slap in the face. How dare he! It was an insult. Within a day, they were back before the judge. A well known Boston jurist, Judge Raymond J. Brassard was a Republican appointee and not considered very favorable to plaintiffs’ attorneys. But he had agreed with MacDonald that a TRO was appropriate.
Now Brassard was faced with Francis Fox, one of the old “white shoe” lawyers from Boston, practically an institution unto himself. Fox was fuming on behalf of his clients, whose honesty Alex MacDonald had presumed to question.
Your Honor, Fox sputtered. This is a large firm and this is a major corporation, he told Brassard, adding that his clients did not need a policeman telling them not to break the law in order to know they shouldn’t speed.
Brassard was stuck. One of Boston’s patricians had given his word that the drug company would not destroy records. The judge lifted the TRO that afternoon while Alex fretted. Fox had put on a terrific show, strutting indignantly on behalf of Wyeth. But Fox’s performance would come back to haunt him.
At about 9:30 the next morning, Alex, Louise Leduc, and Steve Rotman pulled up to the Wyeth compound in St. David’s on the Main Line just outside Philadelphia. The Main Line is the society suburb, old money, old trees, English landscaping putting a quaint veneer on the commercials buildings and business parks that dot the area. But there wasn’t much that picturesque oaks and shrubbery could hide here. Alex whispered, “It’s like Fort Knox.”
Alex, Louise, and Steve had to pass through several guard stations. “How many Checkpoint Charlies do they have to get in here?” Alex asked their official Wyeth handler.
They were ushered unto a cavernous hall with a bare U-shaped table. On all four walls around them, dozens, maybe hundreds of file boxes climbed toward the ceiling.
Jesus, Alex sighed, hearing the air going out of the balloon. So much for our Big Moment. We’re here to get the answer to the most important question in our whole case: What did Wyeth know and when did they know it? But with this damn mess, it will be four years before we find out anything.
Louise and Steve seemed dazed as they stared at the mountain of crates. The Wyeth lawyers reminded them: Look. Write down the numbers of the pages you want us to send to you later. But don’t take anything—those were the rules worked out in Boston with Judge Brassard.
We’ll be here all day and tomorrow and we won’t even skim the surface, Alex thought.
“You guys got an index for us?” Alex asked a Wyeth lawyer.
“Nope.” And if they did, it would be considered work product and not something they’d give Alex, the Wyeth reps said.
Think of the sea change in warfare that came with the invention of the airplane, of the surface-to-surface missile, of the atomic bomb. With the Fen-Phen cases, the computer at last became a formidable weapon system. It marked the first time that computers began to achieve their potential in major, complex litigation.
Depositions, which only in recent years began to be videotaped, were now turned into digital films. They could be e-mailed, like a movie, in minutes—giving attorneys not only the transcript, but [also] a chance to see where the witness hesitated, got stronger, or panicked.
And by finally ensuring that every single page of close to three million documents was copied into the computers, it became easy for lawyers to search for names; to track incidents on specific dates in specific locations; to link up time lines describing patterns of action by individuals.
The rules of the game had changed. It required an entirely new way of thinking strategy. Computer access guaranteed that a witness’s words could be checked and compared instantly to others’ testimony, documents, FDA statements, and, as the double depositions began to take place, to the witness’s own previous testimony. For the defense, it was a nightmare.
When Alex returned to Boston, he found a letter waiting for him in his office from AHP’s lawyers. It explained that the company had located thousands of e-mail backup tapes in different locations involving many of the key individuals dealing with Pondimin and Redux at Wyeth. But it would cost over $300,000 to restore them, an “unduly burdensome” expense. It mentioned how the company sometimes recycled tapes for use in other litigation. But, it noted, AHP had begun retaining backups for its computer system in September 1997 and had refrained “from recycling backup tapes created after September 1997 for its e-mail systems.”
“Thousands of tapes!” Alex yelled out. Grinning, Louise Leduc sashayed into his office. “I told you so.”
Louise had been convinced that the backup tapes for e-mail existed somewhere in Wyeth’s huge computer network. But for nine months, Wyeth’s attorneys had been adamant in court and correspondence: No way, not there. During the previous summer, Arnold & Porter complained to Judge Bechtle in Philadelphia that “Alex MacDonald is on a multimillion-dollar fishing expedition.” In late July, incensed at Louise’s persistence, AHP’s attorney had written, “I have previously advised you that Wyeth has no ‘mass storage devices’ or other backup tapes containing electronic mail messages relating to Redux and Pondimin from Jan. 1, 1994, to Jan. 1, 1997. You asked me to confirm that fact and I do so again here.” In conversations, they’d suggested to Alex that he should get his junior associate under control.
But a month after that missive, Arnold & Porter had turned over to Alex hundreds of documents not previously released to him, resulting from the search for “saved e-mail” that Louise had insisted upon. Alex noted that certain key witnesses were missing from those 611 pages.
The package included the most incredible document Alex had seen in the entire case: an October 1996 memo from a Wyeth administrator named Kay Anderson to Patty Acri. Complaining about the mounting requests for refunds in the wake of the bad news about the IPPHS and pulmonary hypertension, Anderson wrote, “Do I have to look forward to spending my waning years writing checks to fat people worried about a silly lung problem?”
Finally, he reached the end and, conveniently, the pinnacle. You’ll see a lot of documents, he warned the jury. But “there are a lot you are not going to see. There’s a lot of documents I haven’t gotten to see.
“Documents were destroyed. An order was entered by this court at the very beginning of this case, on May 5th, 1997, the documents were not to be destroyed,” he said in a stentorian voice.
“It has already been found that thousands of documents and e-mails among the people of the company, in the time that matters most to this case, don’t exist. And they don’t exist for the simple reason that American Home Products destroyed the documents.
“The legal implications of that destruction you will hear at the end of this case from the judge,” he said as ominously as he could.
Then he finished by telling the jury that the Linnens had made a deathbed promise to Mary that her death would not be in vain.
“We will ask you to do justice…to honor the memory of a young woman, Mary Linnen, who simply wanted to look beautiful on her wedding day.”