Man sues over diluted-drug settlement deal

KANSAS CITY, Mo. -- A suburban Kansas City man whose late wife received diluted cancer drugs from pharmacist Robert Courtney has sued the law firms that spearheaded a $73 million settlement with two drug companies.

The lawsuit filed by Jerome S. Tilzer, of Leawood, Kan., alleges that the law firms intimidated them into agreeing to the settlement, failed to pursue their claims competently and diligently, and engaged in conflicts of interest and self-dealing.

The law firms represented hundreds of plaintiffs against Eli Lilly and Co. and Bristol-Myers Squibb Co., which made the drugs Courtney admitted diluting.

Courtney pleaded guilty in early 2002 to 20 counts related to his dilution of 158 chemotherapy doses of the drugs Taxil and Gemzar, which he prepared at his Kansas City pharmacy for 34 patients, including Tilzer's wife, from March 2001 through June 2001.

Courtney is serving a 30-year prison term but is appealing that sentence. Tilzer's wife, Rita Tilzer, died Jan. 6, 2002.

The lawsuits against the drug companies asserted they were negligent in failing to uncover or report Courtney's scheme. Both companies denied culpability, but, citing the uncertainty and expense of litigation and the emotional impact of protracted litigation on the plaintiffs, settled the cases in October 2002 for $72.1 million.

After legal fees and other expenses were deducted, the plaintiffs -- about 350 in all -- shared in the remainder, estimated at $45 million.

In his lawsuit filed Wednesday, Tilzer said his share of the settlement came to $308,000. The amounts plaintiffs received were determined by a court-appointed special master, based on a formula that took into account mortality rates, victims' ages, the nature of their diseases and other factors.

Lead attorneys Michael Ketchmark and Grant Davis said they were saddened by Tilzer's lawsuit and noted that Tilzer had been expressly told he could opt out of the settlement.

"Mr. Tilzer was represented by separate counsel, his own son-in-law, and made his own decision to participate in the settlement," Ketchmark said.

"The settlement was going to go forward whether or not he participated, and he knew that. There was no incentive on our part to force or encourage him to participate, other than that it was in his best interest to do so. He made that decision after consulting with his own son-in-law and attorney."

Ketchmark added that Tilzer had told him that "unless we paid him $2.9 million out of our own personal checkbooks, he was going to drag our names through the mud. We told him that was inappropriate, and we weren't going to do that. And now we look forward to having our names vindicated."

Tilzer, a certified public accountant, also has expressed his dissatisfaction with the drug company settlement at two different court hearings -- one to enforce the settlement and another Friday to enforce attorney liens against him for payment of legal fees. On both occasions, Senior Jackson County Circuit Judge Lee Wells, who presided over the litigation against the drug companies, ruled against Tilzer.

"He made the same allegations before that he's making in this lawsuit, and the judge threw them out," Ketchmark said.