First Vioxx fight where to Litigate

posted on:
November 15, 2004

author:
Staff

 Attorneys involved in Vioxx litigation predict that all federal cases will be consolidated and transferred to a single venue soon after the Judicial Panel on Multi-district Litigation meets in January. 

Since requests have been made by Merck & Co., which manufactures the arthritis drug, as well as by plaintiffs’ lawyers, the two crucial questions are: Where will the cases end up? And who will be class counsel?

As for venue, Merck has requested Maryland, the Southern District of Indiana and the Northern District of Illinois, in that order. Plaintiffs’ lawyers have petitioned for Houston, Alabama, New Orleans, Minnesota, the Eastern District of Pennsylvania and New Jersey (where state cases can’t be removed to federal court and transferred to the MDL because Merck is headquartered there).

“Once the request is made, it’s almost impossible to stop,” said David Bigelow, a partner at Los Angeles’ Girardi & Keese. His firm has about 200 cases and is plaintiffs’ liaison counsel for California cases aggregated in Los Angeles County Superior Court (In re Vioxx Coordinated Cases, No. JCCP 4247).

Bigelow was interviewed at a reception following a conference last week in Pasadena, Calif. It was the first conference on Vioxx since the drug was withdrawn from the market in September, shortly after a study revealed that it more than doubles the risk of a heart attack.

“As a practical matter,” Bigelow said, turning to the question of venue, “Houston makes the most sense. It has the largest number of cases in federal court. And the judge has familiarity with it,” he noted, referring to Vanessa Gilmore, who sits in the Southern District of Texas.

Asked who will be lead counsel for the plaintiffs, Bigelow said he had no idea, but added that Houston’s Goforth Lewis Sanford Wilson “would be good to be involved.” Other firms mentioned as prominent contenders were New York’s Seeger Weiss, along with Birmingham, Ala.’s, Beasley, Allen, Crow, Methvin, Portis & Miles.
Confidence, at first

Beasley Allen’s Andy Birchfield, who began filing claims in 2001 and has 58 cases now, has two that were supposed to go to trial soon, but may be transferred to the MDL. He also chaired the conference, which was put on by Mealey’s, a legal information company.

Even before Birchfield addressed the 330 attendees who strolled into the hotel ballroom on Nov. 9-nearly all of them plaintiffs’ lawyers-they had reason to feel confident. The morning newspapers revealed that the Justice Department had launched a criminal investigation into Merck’s development, marketing and sale of Vioxx, which was used by 20 million Americans. Merck disclosed this in a quarterly filing in which it also revealed that the Securities and Exchange Commission had launched its own investigation.

But confidence was tempered at times by a sense of vulnerability. Just one week removed from a presidential election that devastated many plaintiffs’ attorneys, politics was never far below the surface. In the afternoon, a speaker announced that Attorney General John Ashcroft had just resigned. This was greeted by loud applause-until someone else shouted, to much laughter, that he was about to be appointed to the Supreme Court.

Birchfield himself injected a note of caution in his introductory remarks. After reviewing a history that he said included evidence that Merck knew seven years before Vioxx was approved by the Food and Drug Administration (FDA) that it could increase the risk of heart attack and stroke, he asked two questions.

“Will FDA be restored to the effective regulatory agency that it once was?” The list of approved drugs pulled from the market-including Baycol, fen-phen, Rezulin and PPA-was not a record to be proud of, he said. He was also troubled by the “revolving door” from drug companies to the FDA-most notably the rise of Daniel Troy, once an outside lawyer for Pfizer Inc., to FDA’s chief counsel.

“Will trial by jury remain a viable forum to hold drug companies accountable?” Birchfield asked, referring to the administration’s continuing efforts to push tort reform through Congress.

“Whether you’re a plaintiffs’ lawyer, a defense lawyer, a stock analyst, whatever,” he said with a nod to the open invitation the conference had extended to interested parties from all sides, “we all need to be able to take a medicine with confidence.”

Still, if they felt like underdogs fighting through a losing streak-and clearly some did-then Vioxx looked to many of them like the long-awaited winner. There was a sense of righteous anger in the air as speakers explained the drug’s science, recounted its troubled history and cited documents that they said proved it was doomed from the start.

One document mentioned at the conference surfaced this month in the Wall Street Journal: a Merck training manual, entitled “Dodge Ball Vioxx,” which allegedly coached company sales representatives to duck questions doctors asked about the elevated risk of heart attack.
Defense perspective

The mood shifted in the afternoon, when speaker Thomas Moore, managing partner of the Los Angeles office of Philadelphia’s Drinker Biddle & Reath, hit them hard with the defense perspective-after loosening them up with humor.

“Being a defense lawyer at a Mealey’s conference,” he began, “is sort of like being an American soldier detached from your unit in downtown Falluja.” Though his primary expertise is drug and medical device cases, he does not represent Merck, he emphasized, and his opinions don’t necessarily reflect the drug company’s, the defense bar’s or his firm’s.

“And depending on how this plays out in the media,” he joked, “They may not even reflect my opinions tomorrow.”

When a drug is under siege the way Vioxx is, “there’s always a lot of fanfare,” he said, turning serious. Presentations are filled with “doom and gloom.” Much of what the other speakers had said about Vioxx he’d heard before about Rezulin and others.

The climate has changed, he told the plaintiffs’ bar. Tort reform has changed the landscape in many states. Judges lost elections, laws changed. And drug companies have grown more nimble. Bayer Corp. established an expedited settlement program to move Baycol cases, Moore said. It made reasonable offers to resolve the best cases, and it took the wind out of the plaintiffs’ sails.

Tort reform has helped level the P.R. playing field, he continued. Jurors’ attitudes have changed as well. Drug companies aren’t necessarily evil, and trial lawyers aren’t necessarily the good guys.

Though his audience may believe that Merck suppressed evidence, that won’t fly with juries, Moore suggested. Merck took the initiative, he said, and did the studies. It gave data to the FDA and ultimately withdrew the drug voluntarily.

“And believe me,” he said, “we’ve tested this. Voluntary withdrawals go over much better with juries. And there’s no evidence FDA ever would have withdrawn the drug.”

Drug companies have learned, Moore said. Plaintiffs’ lawyers had big ideas that didn’t pan out about other drugs pulled from the market. Lawyers accepted bundles of weak claims just to get a few good ones. They need to sort out the good from the bad, he said.

“The question is whether you guys have learned the same lessons. If you have, I think we can resolve these claims in relatively short order.”

Choosing with causation in mind

The change in the mood after Moore spoke was palpable. Bigelow took the podium a few minutes later to talk about developments in California. Though much of what he said was encouraging to plaintiffs, his ending was tough. “We don’t think this is going to be anything other than a dog fight the whole wa
y,” he said.

David Jacoby of Cherry Hill, N.J.’s Anapol, Schwartz, Weiss, Cohan, Feldman & Smalley addressed the importance of careful case evaluation. Causation will be the big challenge, as it is in so many drug cases, he said. If a person takes one pill and has a heart attack, can you prove it was caused by Vioxx? What if the heart attack occurred a month after the person stopped taking the drug? These are questions lawyers will have to answer for themselves, he said.

In this political climate, when they are all under fire, it’s crucial to take cases that are meritorious, he emphasized.

After the conference ended and the lawyers had repaired to the reception, where they downed quiches the size of half-dollars and glasses of red wine, their spirits seemed restored. Especially when asked to handicap the MDL.

It will be in Chicago, predicted Cindi Anne Solomon, a partner at Motley Rice in Mt. Pleasant, S.C. It’s on Merck’s list and she thinks plaintiffs will find it acceptable as well. As for class counsel, Solomon declined to say.

“Politically that would be bad for me to do,” said the lawyer, “because we could be in the running.”

Ronald Goldser of Minneapolis’ Zimmerman Reed was pulling for his state. Choice of class counsel will depend heavily on location, he said. “It will depend on where it goes, because local relationships with lawyers are very important to the transferee court.”

Henry Price of Indianapolis’ Price Waicukauski & Mellowitz is hoping for his city. “It’s unpredictable,” he acknowledged. He worked on the Bridgestone/ Firestone cases a few years ago. The plaintiffs were in the South, but the panel transferred them to Indianapolis, which didn’t have any. Since Indianapolis is on Merck’s list, but not listed first, he’s hoping for a compromise.
Class counsel

As for class counsel, Price thinks there’s a reasonable chance that plaintiffs’ lawyers will come to an agreement among themselves and then propose it to the judge. He’s hoping his firm is one of the five to 10 he expects will be named to the steering committee.

Thomas Kline of Philadelphia’s Kline & Specter passed on the question of location, but threw his support behind Beasley Allen and Seeger Weiss. The two firms are “far ahead of the curve in terms of the development of the case,” he said. “Somebody has to do it. Why not a firm that has had a leadership role?”

Some of the lawyers in Pasadena flew straight to Las Vegas. A conference sponsored there by Mass Torts Made Perfect, for plaintiffs’ lawyers only, featured five hours of Vioxx presentations on Nov. 11 and 12.

Carlene Rhodes Lewis, who spoke at both conferences, said there were at least as many pumped-up lawyers in Nevada as there were in California.

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