Doctor turns tables on lawyers who sued him
By Bill
McClellan
Of the
Post-Dispatch
Sunday, Aug. 14 2005
IN THE CATEGORY of man bites dog, John Daniels is suing Terry
Crouppen. If you
watch much television, you've seen Crouppen. He's the
slow-talking, soft-spoken
lawyer who very sincerely wants to help you
by suing your doctor. Daniels is a
doctor.
The case had its
beginnings in 1997. Daniels was a partner in a practice called
University Internal Medicine and Diabetes Association. The practice
specialized
in obesity problems, and in early 1997, the hot way to
treat obesity was with
the diet drug combo "fen-phen." The National
Institute of Health had published
a study touting the drugs' safety
and efficacy. But then another study
indicated a link between the
drugs and heart valve problems. Lawsuits followed.
These fen-phen
cases were consolidated in a U.S. District Court in
Pennsylvania. This
has to do with rules associated with "mass tort litigation."
If you're
going to have hundreds of lawsuits that are essentially the same, why
clog hundreds of courts? Why have dozens of judges making rulings on
what is
admissible? So the cases were consolidated in a federal court
in Pennsylvania.
But the law is a complicated thing, and before
cases can get consolidated in
one federal court, they first have to
get into the federal system. They get
into the federal system because
of "diversity of citizenship." In other words,
one party is a citizen
of one jurisdiction and the other party is a citizen of
a different
jurisdiction. For instance, the plaintiff lives in St. Louis and
the
defendant drug company is in Philadelphia. However, you need complete
diversity. So if the St. Louis plaintiff were to sue more than one
defendant,
and one of those defendants was also from St. Louis, then
the plaintiff could
avoid federal court.
Conventional wisdom
holds that the circuit court in the city of St. Louis is
plaintiff-friendly. It's considered a good place to file a lawsuit.
And in the spring of 2003, Daniels was hit with three lawsuits by
former
patients for whom he had prescribed fen-phen. The lawsuits were
filed in
circuit court in St. Louis. The law firm of Brown &
Crouppen was one of two law
firms filing the suits. The other firm was
from Texas.
"I thought my career was over," Daniels told me last
week. "I was devastated.
They came right in a row. Like Monday,
Wednesday and Friday. I went on
antidepressants. I even went to New
York and interviewed with Pfizer."
There is a two-year statute of
limitations for this type of lawsuit, and it had
been more than five
years since Daniels had last seen the three patients. But
the statute
does not apply if the doctor intentionally concealed his
malpractice.
So the lawsuits alleged "fraudulent concealment." This further
tormented Daniels. Malpractice insurance does not cover fraud. If a
jury were
to find against him, he would face financial ruin.
The drug company then went to federal court and argued that it was
the real
target of the lawsuit, and that Daniels had been added as a
defendant simply as
a ploy to avoid federal jurisdiction. Daniels'
attorney, Stephen Potter, made a
similar argument. The judge agreed
that Daniels had been "fraudulently joined"
to the lawsuit. So
Daniels' nightmare was over.
But the cases had taken their toll.
For one thing, Daniels and his partners
dissolved their corporation,
largely, according to Daniels, because of concerns
about rising
malpractice premiums. Daniels is still in practice, but he is now
an
employee of Washington University. He also felt that he had been dragged
through the ordeal as part of a legal strategy, nothing more.
"I thought about what this had done to my reputation. Nobody likes
to be
accused of fraud," he told me.
So he decided to sue the
lawyers who had sued him. Attorney Douglas Dowd filed
the lawsuit. I
called Crouppen, and he returned my call, but said he could not
discuss the case. Meanwhile, the original three lawsuits against the
drug
company are still pending. But they are now in federal court,
while the lawsuit
against the lawyers is in the circuit court in St.
Louis - which is, as the
lawyers know, not the best place to be a
defendant.
E-mail: bmcclellan@post-dispatch.com
Phone: 314-340-8143
|