8/28/2014 10:38:00 AM,
Jeff D. Gorman
(CN) - A Mississippi man who won a settlement from the makers of the diet drug fen-phen waited too long to seek $2.1 million of his award, the state appeals court ruled.
Taking its name from its components Pondimin (fenfluramine) and phentermine, fen-phen was a popular treatment at weight-loss clinics in the 1990s until the Food and Drug Administration warned of its dangers. Claude E. Pickett sued drugmaker American Home Products, now known as Wyeth, and four other plaintiffs joined him in the 1999 lawsuit.
The jury ruled in the dieters' favor, with each plaintiff receiving $5 million. Attorney fees and expenses were deducted, and Pickett and the other plaintiffs each received checks for $2.9 million in 2000.
Ten years later, Pickett and two of the plaintiffs sued their attorneys, Robert C. Arledge, Richard Schwartz and Michael T. Gallagher, for fraud, breach of contract, conspiracy and breach of fiduciary duty, claiming that they were each entitled to the full $5 million.
The attorneys argued that the three-year statute of limitations had expired, and the trial court agreed to dismiss the case.
Pickett appealed, arguing that the statute of limitations was tolled by fraudulent concealment.
However, the Mississippi Court of Appeals ruled in the attorneys' favor.
"The evidence is undisputed that Pickett was aware on the day he received his check in February 2000 that it was not the full $5 million," Judge Donna M. Barnes wrote.
She added that Pickett admitted in his deposition that the shortfall got his attention "big time."
"Based on Pickett's receipt of the settlement check in February 2000, the three-year statute of limitations expired in February 2003. Pickett's complaint was not filed until seven years later on March 22, 2010, well after the limitations period expired," Barnes wrote.
She declined to award sanctions to the attorneys based on frivolous filing.
"Although we disagree with Pickett's argument, we cannot say that Pickett had no hope of success. Pickett presented an arguable defense to the statute of limitations before the trial court: fraudulent concealment," Barnes stated.