The plaintiffs bar was heartened Thursday when pharmaceutical giant Merck & Co. stopped sales of Vioxx, a popular arthritis drug that relieves aches and pains, but increases the risk of heart attacks and strokes.
“Two years ago, I was telling people, even my doctor, ‘Hey, you should stop prescribing this.’… I feel kind of vindicated now,” said Robert Cartwright Jr., a San Francisco plaintiffs attorney whose 35 Vioxx personal injury claims are filed with about 250 others in Los Angeles County Superior Court.
Christopher Seeger of New York City-based Seeger Weiss also felt “a little vindicated” and somewhat more confident in the 100-plus suits he’s filed in New Jersey, when Merck decided that data from a three-year study showed that taking Vioxx raised heart attack and stroke incidence to dangerous levels.
Even before Merck’s public admission that Vioxx is harmful, hundreds of test cases were headed to trial around the country. Now that Merck has pulled the plug on the star drug, which netted $2.5 billion last year, plaintiff attorneys are gearing up for a repeat of the Baycol, Rezulin and fen-phen torts.
After Thursday’s recall, firms around the country rushed to send mass e-mails and issue press releases to recruit Vioxx litigants. “It’s going to bring out the best and worst in our profession,” Seeger said.
Merck’s defense attorneys in Reed Smith’s Los Angeles office said they couldn’t comment on the case, but company spokesman Tony Plohoros said Merck expects to see more litigation.
Cartwright says the first few trials will determine both sides’ strategies in pursuing Vioxx claims and will give lawyers a sense of how amenable Merck is to settling. Cases are set to start later this year in Birmingham, Ala., followed closely by cases in New Jersey and Texas.
In the meantime, plaintiffs attorneys say the recall bodes well for them, largely because it raises awareness of Vioxx’s problems among potential jurors. “You have public knowledge that it’s a bad drug,” said Andy Birchfield Jr., whose Alabama-based firm Beasley, Allen, Crow, Methvin, Portis & Miles will try the first case in Birmingham. “It sure affects general causation,” said Carlene Lewis, a partner with Houston-based Goforth Lewis Sanford Wilson, which has 300 Vioxx cases filed in Texas.
Proving causation and Merck’s previous knowledge of the risks will be the keys to the cases, say Cartwright and San Francisco plaintiffs attorney Thomas Brandi. Brandi said he is having a doctor review several potential Vioxx claims before deciding how many to file.
Nancy Hersh, a pharmaceutical litigation specialist at San Francisco-based Hersh & Hersh, said having a drug recalled prior to trials is a rare advantage for plaintiff attorneys. “It says to me that [Merck] had a whole lot of problems,” she said. Hersh does not have any Vioxx claims now, but she said she expects to.
Attorneys filing Vioxx suits agreed that the majority of personal injury claims would not be brought as class actions, due to differences in plaintiff complaints. But all bets are off until the first suits settle or clear trial.
“This stuff never moves quickly. It’s very complex litigation. Going back to fen-phen, it’s probably going to take years,” Cartwright said.