Complaining that judges across Texas have set too many fen-phen suits for trial in 2001, lawyers for defendant American Home Products Corp. want Texas Supreme Court Chief Justice Thomas Phillips to assign one judge to coordinate trial settings statewide.

Defense attorneys for American Home Products say Rule 11 can be used as the mechanism to protect the company's due process rights, which they claim are threatened by the heavy trial schedule.

But Phillips denied the request on Nov. 15, saying he can only make such an assignment at the request of regional presiding judges.

Marie Yeates, an appellate attorney for American Home Products, said on Nov. 15 that she did not know if the company would go to the regional administrative judges and ask them to ask Phillips to appoint a single Rule 11 judge.

But history doesn't favor American Home Products. The motion filed in early November with Phillips is not the first time American Home Products has tried to get a statewide judge for fen-phen suits under the 3-year-old Rule 11 of the Texas Rules of Judicial Administration. Efforts in 1998 and 1999 before Phillips and other judges in Texas were unsuccessful, but defense attorneys for American Home Products say Phillips can make it happen this time -- and should.

"No court can expect that a single defendant in mass tort litigation could adequately prepare for more than 600 trials in one state in one calendar year, particularly in these diet drugs cases which involve highly complex, sophisticated medical and scientific issues," the lawyers wrote in the motion to Phillips.

"The courts must act to prevent the wholesale deprivation of due process inherent in the 'runaway' trial schedule that American Home now faces," the lawyers wrote.

But plaintiffs' lawyers say the motion filed with Phillips is simply another tactic to delay trials.

"They are doing everything in their power to slow down the trials. And I mean that's the bottom line," says Michael McGartland, a partner in McDonald, Clay, Crow & McGartland in Dallas. "At what point does the access of a plaintiff to the court outweigh their [the defense] being able to completely manipulate how many cases will go to trial?"

"This is just another attempt to get what I call the American Home Products exception to every rule," says Sharon McCally of Houston, an appellate lawyer who worked on the plaintiffs' response to the motion.

TWO-PART PROCESS

The deluge of fen-phen suits in Texas started after the Food and Drug Administration asked drug companies to withdraw fenfluramine, the "fen" part of the diet-drug combo, and the related drug dexfenfluramine, or Redux, from the market in September 1997. The suits pending in Texas were filed on behalf of plaintiffs who opted out of a global settlement with American Home Products approved by a federal judge in Philadelphia in August.

American Home Products is seeking a Rule 11 judge through a two-part process. It asked Phillips to first appoint the same active district judge to handle fen-phen pretrial matters in all nine administrative regions. Next, they want Phillips to "confer" with the presiding judges to ask them to appoint that single judge to develop a procedure for statewide or inter-regional trial coordination.

That process would take some cooperation from the nine regional judges. But the state's administrative judges didn't give the Madison, N.H.-based company what it wanted once before.

In May 1998, lawyers for American Home Products filed motions with the administrative judges, asking them to appoint a Rule 11 judge in their regions to handle pre-trial matters for fen-phen litigation in their region. At that time, they also wanted the administrative judges to ask Phillips to select one judge statewide.

But the request never got to Phillips. The administrative judges met in June 1998 and decided against asking the chief justice to take action. Judge Ray Anderson of Lubbock, the head administrative judge at that time, said then that the judges decided to appoint Rule 11 judges to handle pretrial matters within their regions.

A year later, American Home Products again sought a statewide judge, but Phillips took the position in June 1999 that he had no authority under Rule 11 to appoint a statewide judge for the coordination of trial scheduling.

But defense attorneys for American Home Products from Vinson & Elkins and Clark, Thomas & Winters argue in the latest motion to Phillips that it's facing a crisis in Texas.

The defense attorneys say that although there is no procedure requiring Texas district courts to coordinate their trial settings with other courts, the defendants are entitled to due process in mass tort litigation.

"This is the time for the Texas courts to address the wholesale deprivation of due process engendered by the 'run-away' trial schedule, as chaos looms in the trial courts," the defense attorneys wrote.

"Even with the ability to retain hundreds of attorneys to represent it, American Home simply cannot defend all the cases that may go to trial next year," they wrote.

Yeates, a partner in V&E, says the 3-year-old Rule 11 was designed to solve problems like the one American Home Products is facing in Texas. "We're trying to get the benefit that should be provided under Rule 11," she says.

But plaintiffs' and appellate lawyers from 11 firms with fen-phen suits, in a response completed after Phillips sent a letter to defense attorneys, argue American Home Products lawyers are trying to expand or alter the boundaries of Rule 11. They contend American Home Products' request treats the presiding judges like "puppets."

They also argue that the defense lawyers presented no evidence that the existing Rule 11 judges have failed to consult with each other or failed to entertain motions for continuance.

"AHP cannot offer any evidence that the Rule 11 Courts have not struck an appropriate balance; that is probably because AHP has not acknowledged that fairness to plaintiffs is part of the equation," the plaintiffs' lawyers wrote.

McCally, McGartland and Houston plaintiffs' lawyer Richard Laminack, a partner in O'Quinn & Laminack, suggest the state's fen-phen caseload is being managed properly by the regional pretrial judges.

"This is a little late in the game," says Laminack. "Now that all of the work is done, and we've jumped through all the hoops and the courts are setting the cases for trial, with the input of AHP, they say, 'We want to start all over?' And their argument is because we have injured so many people, we don't have the ability to answer for it?"

"They are basically asking the Supreme Court to do something to the Rule 11 judges to correct their behavior that hasn't been faulty," says McCally, a partner in Storey, Moore & McCally.

It's unclear what the presiding judges would do with a request from American Home Products seeking a statewide trial scheduling judge from Phillips.

The chief presiding judge, B.B. Schraub of Seguin, Texas, is out of the office until Nov. 21, and did not return telephone messages left at his office. But Judge John Ovard of Dallas, presiding judge in the First Judicial Administrative Region, said Rule 11 issues were on the agenda of a meeting of the presiding judges, scheduled for Nov. 17 after press time.

Ovard and Judge David Peeples of San Antonio, presiding and fen-phen Rule 11 judge for the Fourth Judicial Administrative Region, declined comment on American Home Products' request.

But Ovard, presiding judge since August, says he believes it's working well with regional Rule 11 judges for fen-phen pretrial matters. "I think it's an advantage to both sides to have consistency and continuity in the rulings, especially involving such complex cases," he says.

Two Houston judges on a panel handling fen-phen pretrial matters in Harris County, 295th District Judge Tracy Christopher and 269th District Judge John Wooldridge, decline comment.

But 17th District Judge Fred Davis of Fort Worth, the Rule 11 judge in the Eighth Judicial Administrative Region, says one judge statewide wouldn't be able to oversee all the suits.

According to American Home Products' motion, Davis set 225 cases on the trial docket during the first seven months of 2001. But Davis says that while he's setting a lot of trials in an effort to resolve suits, he's not about to violate American Home Products' right to due process.

He says, "I don't intend to abuse their right to a fair trial or anything, obviously, but I think we ought to set as many cases as we can ... to move this docket."

The Rule 11 judge in the First Region, 162nd District Judge Bill Rhea of Dallas, says it's true he's scheduling more fen-phen suits for trial -- 187 in 2001 compared to 42 this year -- but says it's necessary for judicial administration.

He's not convinced a single judge could coordinate trials statewide.

He says, "That would be problematic because it's difficult enough for one judge to try to do it in one region."