The judge overseeing thousands of federal lawsuits over Merck & Co.’s once-popular painkiller Vioxx said Thursday that an effort by plaintiff’s lawyers to keep their cases in state courts was “counterproductive” to his desire to eventually settle all claims.
“There’s a movement afoot to work outside” multi-district litigation, U.S. District Judge Eldon Fallon told lawyers at a status conference. “I think that’s counterproductive.”
The first federal Vioxx trial opens Nov. 28 in Houston.
Multi-district litigation is intended to streamline trial preparations when multitudes of lawsuits are filed on similar issues. The concept provides uniformity in pretrial rulings because the same judge oversees all preparations and Merck can avoid repeated depositions on similar topics.
The judge said thousands of state trials counteract his goal of reaching a global settlement of all Vioxx cases. He wants state cases folded into the same pot that holds the consolidated federal cases under his purview so he can preside over a few trials and determine a proper resolution to all the litigation.
“Hopefully, these cases can be resolved short of trying every case. That’s my hope,” Fallon said.
Plaintiffs’ lawyers Mark Lanier of Houston and Perry Weitz of New York say they have assembled a legal “dream team” of 10 law firms and 350 lawyers to push all future Vioxx lawsuits into state courts. Federal courts are generally considered more defense friendly.
Lanier said they aim to “resolve cases fairly,” but he expects 10 legal teams to run state trials nearly continuously, tying up Merck’s resources, while Merck expected to fight most Vioxx cases in federal courts.
In August, Lanier won a $253 million verdict against Merck in the first state Vioxx case to go to trial, in a semi-rural town 40 miles south of Houston. Texas caps on punitive damages will cut that verdict to no more than $26.1 million.
“They basically want me to consign my cases to the (multi-district litigation) and wait for a resolution from their hard work,” Lanier said. “That is not why my clients hired me. I am not a baby sitter on these cases monitoring them for my clients. I am the trial lawyer.”
In a statement, Merck said it supported the multi-district litigation court’s “determination to move forward aggressively to try cases with differing fact patterns to help give definition to this litigation. It said it believed the multi-district litigation process brings a “a level of consistency to this litigation which is important for all parties.”
Merck pulled Vioxx from the market in September 2004 after a long-term study showed the drug doubled risk of heart attack or stroke if taken for 18 months or longer. Merck said it faces 6,400 Vioxx-related lawsuits. Plaintiffs allege the company knew Vioxx was dangerous years before withdrawing the drug but downplayed those concerns to push sales. Tony Canales, a former U.S. attorney in Corpus Christi who has been involved in multi-district litigation and represented both sides in civil litigation, said plaintiffs’ lawyers directly involved in the consolidated format also earn more fees than those on the sidelines.
“A small group of lawyers know how to handle (multi-district) litigation, and those guys make the money,” he said.
After the Nov. 28 Vioxx trials, the next federal Vioxx trials will be in February, March and April next year. Fallon said he will meet with both sides after the April trial to see how close they are to negotiating a global settlement.