For Merck & Co. and its recalled arthritis painkiller Vioxx, the proverbial floodgates are about to open.

Lawsuits. Lawsuits. Lawsuits. And they’re coming fast.

The recall came after testing revealed the risk of heart attack or stroke doubled for those taking Vioxx.

That’s a big percentage, but it pales next to the increase the Whitehouse Station pharmaceutical will experience in the amount of Vioxx lawsuits filed against it.

The number is sure to skyrocket from the hundreds that were started even before Merck’s dramatic Sept. 30 announcement to the thousands. Law firms here and in other states are feverishly trying to attract Vioxx cases.

The ad wars have begun, including pitches for clients in New Jersey newspapers. A host of cases already had been filed here – enough, in fact, so that last year they were consolidated for management by Judge Carol E. Higbee in Atlantic County. Some could go to trial by the summer. In the meantime, Higbee is likely to be managing many more lawsuits.

Christopher A. Seeger of New York, whose firm Seeger Weiss also has an office in Newark, already had filed 100 cases in New Jersey – roughly half the state’s total. He said his firm had been working on 150 others even before the announced recall.

He predicted the number could reach 10,000 nationwide. Numbers from some Wall Street analysts are even higher, with one putting the number in the hundreds of thousands.

Seeger, however, noted that when people stop using Vioxx, it apparently is “cleaned from the body” and does not linger. The injuries, in other words, might not mount. In any event, liability exposure is certainly high, although most observers agree it is not as great as that faced by Madison-based Wyeth over its diet drugs.

Since the launch of Vioxx in 1999, 20 million Americans have used the drug, Merck estimates. The legal impact of the recall is just being sorted out.

Frederick E. Gerson of Florham Park, co-counsel with a Dallas firm for 30 of New Jersey’s cases, said one thing Merck accomplished in pulling the drug was cutting off its liability in the sense that it capped the number of users.

But he also said the action was an acknowledgement of liability.

Sol Weiss of Philadelphia, whose firm Anapol, Schwartz Weiss, Cohan, Feldman and Smalley, also of Cherry Hill, has 86 of the New Jersey cases filed so far, said the recall may favor plaintiffs by making a jury less likely to give weight to the fact that Merck had Food and Drug Administration (FDA) approval.

Andy D. Birchfield Jr. of Montgomery, Ala., who has 37 New Jersey cases in which he is working with local counsel Anapol, Schwartz, said if the drug had not been pulled, there would be the “substantial hurdle to overcome of why the FDA hasn’t pulled it.”

But Merck removed that hurdle on its own, he said. Seeger said the FDA “fast-tracked” the drug for approval, which has led to problems with Vioxx and other unrelated drugs.

The plaintiffs’ lawyers dismissed suggestions that Merck’s move, combined with the company’s good reputation, will significantly blunt suits against it.

An attempt to reach the attorney representing Merck in the New Jersey cases, Wilfred P. Coronato of Jersey City, was unsuccessful.
Strong defense

A company spokesman, Tony Plohoros, said, “While we are declining to comment on the specifics of any litigation brought against Merck, we continue to believe that we have strong and meritorious defenses to the lawsuits brought against us.”

But Seeger said the company knew “that this drug had an issue,” that Vioxx was “not adequately tested for safety.” Gerson said “incriminating documents” would be discovered, and Weiss pointed to a number of studies that “all sort of questioned the cardiotoxic effects of Vioxx.” He said that now “the cat’s out of the bag.”

Weiss said his firm filed cases in New Jersey because Merck is headquartered here – and because it avoided federal court.

He said for other cases, Merck could push for so-called multi-district litigation (MDL) in federal court, but that such a move would not affect the New Jersey matters.

MDL consolidates filings for case-management purposes and can lead, for example, to efficiencies in taking depositions and other discovery measures.

The New Jersey counterpart is the management of mass torts, such as Judge Higbee already is exercising in the Vioxx cases.

The New Jersey Vioxx plaintiffs’ lawyers praised the job she is doing.

Weiss said that if cases go to trial, the verdicts in the first cases could “set values” and help lead to settlements in subsequent cases.

The New Jersey cases involve serious heart problems, the plaintiffs’ attorneys said. Some allege Vioxx caused users’ deaths. Weiss said his firm rejects cases involving, for example, “racing hearts.”

Birchfield said the cases have a range of values. People have had heart attacks and recovered, some have died, and some have had strokes. The strokes, in turn, have resulted in a range of disabilities.

Gerson said his firm received 100 inquiries in the days after Merck’s announcement. And as Seeger put it, the phone at his firm “hasn’t stopped.”

Birchfield may be first in the nation to reach trial in a Vioxx case. He has one scheduled for December in Alabama.

He has received hundreds of thousands of pages of documents in discovery and contends he has a “very strong liability case.”

“We feel very comfortable,” he said.

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