Halfway through a seminar for lawyers suing Merck & Co. over its recalled pain-reliever Vioxx, J. Paul Sizemore dropped the scientific jargon and cut to the chase.
“The evil eye of Merck, like the Lord of the Rings, will be looking for a chance to jump on you,” the Alabama attorney told his audience. “If you take anything away from this meeting, be careful about the case you take.”
It was just one glimpse of reality behind bold-face newspaper ads plumbing for Vioxx “victims” and warnings of gargantuan legal bills for New Jersey-based Merck, whose Montgomery County operation may have played a central role in Vioxx marketing and distribution.
For two days this week in Philadelphia, more than 300 plaintiffs’ lawyers from around the country paid up to $1,095 each to compare notes and plot strategies on what may become one of the biggest pharmaceutical personal-injury battles in years.
Vioxx was a blockbuster drug for joint pain, bringing in $2.5 billion in sales for Merck in 2003. Then a litigation storm burst after Sept. 30, when Merck recalled the drug based on a company-sponsored study that found increased risk of heart attack and stroke in patients after 18 months.
Part pep rally, part business strategy session, the Vioxx Litigation Conference—the second of three sponsored by Mealy Publications & Conference Group, from King of Prussia—was a forum for lawyers hoping to learn the science of Vioxx and figure out whether to proceed against Merck.
Even Merck, presumably, was there. Several participants said they assumed one of the participants was secretly working for Merck. A few speakers said they even tailored their comments to send a message.
“What we’re basically saying to Merck here is, this is how we intend to proceed,” said Thomas Kline, a speaker and partner in the Philadelphia firm of Kline & Specter.
Asked whether any Merck moles were there, Ted Mayer, representing Merck for the New York-based firm Hughes Hubbard & Reed L.L.P., said: “Our focus is on the cases that are filed in the courtroom, and not really what plaintiffs lawyers are saying to each other.”
As many as 100,000 people may have suffered health problems or died because of Vioxx, scientists have estimated. Equity analysts have calculated that Merck could face up to $30 billion in liability bills – with lawyers getting one-third.
Lawyers at big firms and small nationwide have been soliciting and reviewing thousands of cases. So far, at least 700 have been filed, according to a court-by-court survey by the Associated Press. Almost all are personal-injury cases.
Several plaintiffs’ lawyers said they hoped to learn how to weed out winnable cases or where to refer a client – for a fee. The goal was getting all lawyers to adopt similar defenses, because any losses could snowball and undercut a settlement amount that lawyers hope to set as a benchmark for all cases.
“We’re here to unify and strengthen the cases,” said Kline, who would say only that his firm has amassed “a lot” of cases and expected to be a leader in the litigation nationwide.
Merck has said it intends to fight the injury cases one by one, saying that plaintiffs will be hard-pressed to prove that Vioxx—and not other health problems, including smoking and obesity—caused their problems.
But speakers said they have figured out how to defeat Merck’s strategy using detailed medical and marketing information. Speakers told lawyers they should sign up even patients with other health problems as long as they had had a heart attack while on Vioxx.
“We cannot let Merck walk out on the consumer to whom they marketed the drug,” said Carlene Rhodes Lewis, a Houston attorney.
As the lawyers coolly talked about picking and choosing cases, some observed that attorneys may get a bad image not by trying to make money, but by pretending money is not a motivation.
“I’m not just a lawyer. I’m a businessman,” said Barry Hill, a veteran of pharmaceutical and medical-device lawsuits from Wheeling, W.Va. “Two things can happen at the same time: making money and helping people. But it’s unfortunate when lawyers try to give the impression that we’re doing this solely for the purpose of protecting the nation.”