Gray Clouds Imperil Drug Firms

By sheer chance, Turkewitz says, the Fagan family happened to save a bottle that once contained Epogen that he says was later proven to be fake.

"The chances of that happening are astronomically small," he says. "That's probably why Tim has one of the few cases out there, despite tens of thousands -- or even hundreds of thousands -- of victims."

AmerisourceBergen spokesman Mike Kilpatric says the company feels bad about Fagan's ordeal but continues to believe that his claims are without merit.

Regardless, Turkewitz is seeking huge punitive damages from AmerisourceBergen in an effort to keep the company from trading in the risky gray market again. A federal judge last summer rejected AmerisourceBergen's argument that the court should throw out the case, finding the company "in the best position to protect against the risk of harm," and cleared the way for a jury trial next year.

"My objective is to make sure that trading in the secondary market is no longer profitable. This industry," Turkewitz concludes, "has got to change."

Dodge Ball

Of course, the industry has escaped major changes in the past.

Notably, drug wholesalers have managed to block a federal law requiring so-called pedigree papers -- tracing medications from one supplier to the next -- that was passed more than 15 years ago. They have argued that pedigree papers would cost too much, trigger drug shortages and -- because they can be forged -- fail to eliminate counterfeit drugs in the end. And the Big Three, in particular, have insisted that they have strict controls in place to protect against counterfeit drugs on their own.

But AmerisourceBergen itself has confessed that problems can still arise. Moreover, the company has insisted that it should not be held accountable when that sometimes happens.

AmerisourceBergen presented its argument four summers ago when fighting a $2,000 fine for conducting business with an unlicensed wholesaler in Florida.