Ralph Nader's Health Research Group has entered into an unusual alliance with trial lawyers, selling information to them for use in suits against drug companies. The Center for Auto Safety, another Nader group, is doing the same thing for attorneys using auto makers.
The new alliance between groups that generally are at odd - Nader's consumer advocates are strong supporters of the no-fault insurance concept that could put many trial lawyers out of business - has already begun to pay dividends.
Lawyers who got information during the past year from the Health Research Group have won major suits in Baltimore and New Orleans - totaling $710,000 - against the Upjohn Co. over the use of Cleocin, an antibiotic that as a side effect can cause extreme diarrhea and cases of colitis that have led to deaths.
While Upjohn maintained the new alliance was of no help in those two suits, the company has gotten gag orders there and in other similar cases that stops attorneys from contributing new information gathered about the drug during the course of litigation to the Health Research Group's clearing house.
An Upjohn spokesman, Terry G. Kelley, refused to go beyond a statement saying the clearing house has had no "significant impact" and declined to put a reporter in touch with the company's general counsel.
The clearing house is a marriage of convenience, with the trial lawyers and the Nader groups pursuing different aims. The lawyers are out to win individual cases, from which they get fees that usually equal one-third to one-half the settlement.
The Nader groups, which charge a pittance for their information compared to the lawyers' potential fees ($50 a year for four newsletters from the Health Research Group, $65 a hour for consulting with Center for Auto Safty experts), are trying to pressure the industries to reform.
"We are trying to force the drug companies who manufacture dangerous products to pay the true costs their products impose on society by compensating all consumers who were unfairly injured," said Dr. Sidney M. Wolfe, director of the Health Research Group.
"It's going toi hurt them (the drug companies), and it should," he added.
Alan Morrison, the attorney for Nader's specialized consumer organizations, saw nothing unusual in the alliance with the trial lawyers.
"We're ganging up on the people who have been ganging up on us," he said.
Trial lawyers agree that the Nader groups provide a service for them. For their $50, subscribers in the drug clearing houses get a detailed chronological listing of scientific reports and internal FDA debates on the ill effects of the drug - whatever lawyer needs to start a case.
Much of the information comes from public sources, but some originated in obscure medical journals not readily available to most lawyers. The best nuggets were leaked to Wolfe by sympathizers within the FDA, and without him it possibly would never be available to lawyers.
The Health Research Group runs clearing houses on four drugs, including progestogen, a hormone that Wolfe said is being given to 300,000 pregnant women to prevent miscarriage even though the FDA said it should not be used for that purpose and has been known to cause birth defects, and DES, a synthetic hormone reported to cause cancer.
Clarence Ditlow, director of the Center for Auto Safetyty, called dealing with the trial lawyers "an arrangement of necessity" - the only way his organization could get information the lawyers gained from their subpeona power. The center will use that information either in arguments before federal agencies and Congress or as ammunition for lawyers pursuing other suits.
Both the Health Research Group and the Center for Auto Safety advertised in Trial Magazine, the journal ofa the Association of Trial Lawyers of America, for attorneys to buy their services.
Ditlow said the auto safety started selling information because it was swamped with requests from lawyers. It now sells a bimonthly newsletter that lawyers for auto companies buy and provides a research service of design defects and highway safety.
Wolfe said he recognizes the trial lawyers "as creatures of self interest, but they are the only ones who go to bat for people who have no money" since they take cases on a contingency basis, getting paid only if they win.
As far as Paul D. Rheingold, a New York trial lawyer, is concerned, Wolfe 'is not doing it to help the plaintiffs' lawyer. He's doing it to help the public health. We are the incidental beneficiaries."
He is certain the fallout from the lawsuits will achieve Wolfe's aim. "You get one or two big verdicts," he said, "and changes happen overnight."
"This is law being used to regulate," added Wolfe. "When a drug company gets hit with tens of millions of dollars worth of law suits, it will make them think a little about what they are doing."
The fact that some drugs are still on the market, he said, "bespeaks of the failure of the Food and Drug Administration," to regulate the drug industry.
"The regulatory route doesn't do it all," he said. "We need both. The suits will hit the companies economically. We think it's an important addition to just using leverage on the FDA."
Yet the alliance between his group and the trial lawyers is not always smooth. Wolfe thinks the lawyers cave in too quickly on the gag orders. "They have little public concern," be said. "They just want to do business for their clients."
Kenneth Henke, the lawyer who won a $310,000 jury verdict against Upjohn in New Orleans, acknowledges he has not fought hard against restrictions on spreading the information ganed from company files. He said he may make a constitutional issue in a case next month in Lake Charles, La.
"The protective (gag) order is wrong," he said. "We've discovered information in Upjohn's files that (is really damaging). But we can't tell it to anyone because of the protective order."
On the other hand, Henke feels Wolfe left him in the lunch by abruptly refusing to examine the Upjohn documents as an expert witness because he feared the gag order would muggle him in other cases. "It left us a little upset. We were sort of counting on him," said Henke.
While gag orders generally, are not used, they have become very common in suits against drug companies.
"If I get a new drug case and the defense doesn't ask for one, I'm astounded," said Rheingold, the New York lawyer who specializes in suing drug companies.
The gag orders are one measure of the industry's concern over the proliferation of suits. Another is their questioning of potential witnesses during pretrial examinations. In one instance - protected by a gag order - an Upjohn attorney asked the witness if he had any contact with Wolfe or had gotten information from a clearing house.
Wolfe said he is trying to work around the gag orders. In a recent news letter, his research associate, Norma-Jean Jamison, asked lawyers to tell the Health Research Group about letters and memos they know exist in that Upjohn files.
"Supply us with the pertinent information - not the document," she wrote the dozen lawyers who belong to the clearinghouse.
"What is it? Who sent it to whom? What did it say? This data could be crucial to another member's case. It could to a piece of information that could be used to form a question in a deposition or a request as part of discovery.
"We know of an instance where this happened," she continued, "and the results permitted a warning, not previously allowed, to be entered into evidence. Our use of this method of disseminating information was helpful to at least two lawyers that we know of."
Rheingold, the New York lawyer, started what is believed to be the first clearing house 15 years ago, involving lawyers who were suing over the use of an anticholesteral drug called MER-29 whose side effects included cataracts, falling hair and skin disorders.
With so many suits, the drug company, Richardson-Merrell, agreed to let one lawyer take 12 deposition, which were used in 2,000 cases.
A birth control pill cooperative effort has 400 members and one involving the Dalkn Shield, an IUD, is now underway. Each lawyer paid $350 to join the Dalkon Shield group, Rheingold said, which covered the $100,000 it cost to take depositions.
"If each lawyer did it by himself, he said, "it would have cost between half-a-million and a million dollars. So it saved the clients money" on expenses, which some off the top of the settlement before the split between attorney and client.
"It's has a lot of consumer benefit as well as lawyer benefit," said Rheingold.
The newest group is a cooperative effort of 60 lawyers suing the government on swine flu cases.
The Association of American Trial Lawyers operates a product liability exchange which has information on thousands of products and hundred of medical procedures that can be used be members involved in suits.
But the clearing house run by the Health Research Group and the help provided by the Center for Auto Safety are unique in that their aims are not win suits as much as to reform the industries.