Lawyers bone up on Vioxx Liability

posted on:
November 10, 2004


 On the September morning Merck pulled its blockbuster pain medicine Vioxx from the market, a group of lawyers was busy taking a deposition from the drug maker’s former chief medical officer. 

The news stunned those inside the offices of that prominent Philadelphia law firm. Then, the deposition quickly resumed, as attorneys probed for facts to make their case that Vioxx, a $2.5 billion seller, caused heart attacks and strokes.

Yesterday, with the litigation storm intensifying, hundreds of plaintiffs’ attorneys from around the country gathered at the plush Ritz-Carlton Hotel here to receive a $795 crash course on the liability issues Merck faces in Vioxx.

“We are here in the wake of the largest pharmaceutical withdrawal in history,” said Andy Birchfield, a prominent lawyer from Alabama whose firm is involved in a number of the oldest Vioxx lawsuits.

“The purpose of this meeting is to share what we know about Vioxx, and we actually know a lot because a handful of firms have been involved in this for three years.”

In lawyer’s parlance, Vioxx is a fast-breaking tort, which could ultimately generate in excess of 50,000 plaintiffs. By some estimates, Merck faces liability of as much as $18 billion in cases that stretch from New Jersey to the West Coast.

A California judge recently asked a group of attorneys litigating one of the older Vioxx cases, “Just how big is this going to get?” The attorneys looked at each other and shrugged, said David Bigelow of Los Angeles, one of the lawyers.

That has professional organizations scrambling to turn scheduled educational conferences into daylong sessions on Vioxx.

Lawyers who started taking cases as early as 2001 find themselves in a position of providing insights on everything from how the drug works to how to select cases—without revealing too much of their own strategy.

In May 2003, New Jersey court officials designated a group of roughly 50 lawsuits as a mass tort and assigned the case to state Superior Court Judge Carol Higbee, who has presided over Atlantic and Cape May counties since 1993.

The case involves nearly 200 lawsuits today—and the number continues to grow.

“New Jersey is the battleground, the epicenter,” said Chris Seeger, one of the lead attorneys in the litigation.

Lawyers in the New Jersey case have gathered 4 million documents, many of which Merck is fighting to keep confidential. Those documents will be a key part of the effort to prove the drug was to blame for their clients’ heart attacks, strokes and, in some cases, their deaths.

In a statement, Whitehouse Station-based Merck said it “believes the appropriate place to try proceedings against the company is in the court of law, not through the news media.”

“None of the documents can obscure the fact that Merck acted responsibly and appropriately as it developed and marketed Vioxx. When questions arose about the safety, Merck took steps to investigate and address those issues,” the company said.

But lawyers say there’s proof to suggest otherwise.

“It’s going to be difficult, if not impossible, to defend Merck’s conduct,” Kline said. The cases will turn on proving the drug caused the plaintiffs’ injuries.

“That challenge is to take cases that are real, serious cases where it can be proved that the drug caused the stroke or the heart attack,” David Jacoby, another lawyer representing cases in the mass tort litigation, said.

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