From the outset of the fen-phen litigation in 1996, knew it would push the limits of science, medicine, and law. The case quickly grew into one of the largest mass tort actions in American legal history, with 45,000 women claiming to have developed serious heart and lung conditions from taking the popular diet drugs.
It would take four years, but Resnik would win a giant legal victory for his client, Fisons, the company that sold phentermine, half of the popular diet drug combination.
Science emerged in Fisons' favor. Studies linked fenfluramine, not phentermine, to the deadly side effects, and Fisons was dismissed from the case.
The litigation continues against the maker of fenfluramine, American Home Products (now Wyeth), and to cover its anticipated costs, the company has set aside about US$14 billion.
The victory barely behind him, the Boston attorney embarked on yet another high-profile case -- this time, defending Garst Seed Co, the seller of the genetically modified Starlink corn that sneaked, unapproved, into the nation's food supply two years ago. Like the fen-phen litigation, the Starlink cases promise to play out in courts across the nation, once again bumping into the boundaries of science, law, and regulation.
"Fen-phen and Starlink are cases where the hysteria and fear got ahead of the science," said Heidi Chesley, a partner at McDermott, Will & Emery who works with Resnik on both cases. "The litigation is unfolding as the science unfolds. Complaints are filed before anyone really knows what is going on. And on the defense side, you don't know what is going to unfold either."
Starlink, a variety of corn genetically altered to poison small inchworm-like pests known as corn borers, had only been on the market three years. In an unprecedented move, regulators had approved it for animal and industrial uses, but not for human consumption. In September 2000, however, the corn began showing up in places and products where it didn't belong, including taco shells, corn chips, breweries, and muffin mix. The discovery grabbed headlines, fanned fears of allergic reactions to corn products, created hassles for corn growers, grain-elevator operators, and food processors, and gave rise to more than 300 product recalls.
Although there is no evidence of serious physical harm from eating Starlink, numerous lawsuits have been filed against Garst and Aventis CropScience, the company that invented and licensed Starlink to Garst.
Hundreds of millions of dollars are hanging in the balance. Aventis has already taken a US$100 million charge against last year's earnings to account for costs related to the Starlink contamination, including a program intended to reimburse farmers for added costs associated with the contamination.
A class-action suit brought by consumers who purchased the recalled food products cost US$9 million to settle. And nearly 30 other cases are pending in multidistrict litigation that has been consolidated in a federal court in Chicago.
Although the public controversy over Starlink has largely quieted, issues regarding the regulation of genetically modified corn and other crops continue to emerge. Against that backdrop, Resnik and other attorneys involved in the case are busily filing legal briefs and deposing witnesses as the cases slowly march toward trials, which could begin as early as spring 2003 or as late as 2004.
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