Plaintiff’s Attorneys Plot Strategy in New Orleans

posted on:
November 19, 2004

author:
David Voreacos

Attorneys representing 39 U.S. law firms met at a New Orleans restaurant and chose two lawyers-one of them from Alabama-to lead federal lawsuits targeting Merck & Co.’s Vioxx painkiller.

The meeting on Monday at Antoine’s Restaurant, a 164-year-old fixture in the French Quarter, followed strategy conferences last week in Pasadena, Calif., and Las Vegas involving hundreds of lawyers. Merck pulled Vioxx from the market Sept. 30 after a company study found it doubled a person’s risk of heart attack and stroke.

Merck, the No. 2 U.S. drugmaker, faces legal liabilities that could range as high as $18 billion, Merrill Lynch estimated. The company says it acted appropriately and will contest each lawsuit.

Attorney Daniel E. Becnel Jr., who organized the meeting at Antoine’s, said the lawyers will coordinate their actions.

“It’s kind of like taking 39 different firms and cutting a little piece out of each and creating a super-firm,” said Becnel of Reserve, La. “The lawyers that were invited are the major players in the country.”

Thousands of lawsuits

Merck faces hundreds of federal suits around the United State. It also is defending 180 suits that were consolidated in a state court in Atlantic City, N.J., and hundreds more in an state court in Los Angeles. Thousands more Vioxx lawsuits will be filed, Becnel and other lawyers say.

The lawyers at Antoine’s chose Christopher A. Seeger of Seeger Weiss LLP in New York and Andy Birchfield Jr. of Beasley, Allen, Crow, Methvin, Portis & Miles in Montgomery, to lead the federal lawsuits. Seeger and Birchfield must be approved by whatever U.S. judge is ultimately selected to hear the cases.

“It certainly makes sense from a plaintiffs’ standpoint not to duplicate efforts by to pull together as a team and make sure that our clients are adequately compensated,” said the 40-year-old Birchfield, a native of Alabaster who graduated from Samford University and the Thomas Goode Jones School of Law at Montgomery’s Faulkner University.

Tony Plohoros, a spokesman for Merck, based in Whitehouse Station N.J., said the company will fight each lawsuit.

“Our plan is to try these cases because each one is unique,” Plohoros aid. “We feel that we have a meritorious defense, and we will defend cases brought against us vigorously.”

U.S. regulators estimate that Vioxx may have contributed to 27,785 heart attacks and deaths before it was pulled in the biggest drug recall ever. Vioxx generated $2.5 billion in sales for Merck last year, about 11 percent total revenue.

Since the recall, Merck’s market value has plunged by almost $40 billion, and the U.S. justice Department and Securities and Exchange Commission have begun Vioxx-related investigations.

Merck wants a judicial panel to consolidate the federal cases before a single judge in Baltimore, Chicago or Indianapolis. The lawyers who chose Seeger and Birchfield can’t agree on where the judicial panel should assign the U.S. cases.

Becnel wants New Orleans. Birchfield prefers Birmingham. Attorney Carlene Rhodes Lewis of Goforth Lewis Sandford LLP in Houston wants her city because 300 federal cases are pending there, the most of any U.S. courthouse.

Lewis, who filed her first Vioxx case three years ago, said two U.S. judges in Houston, Kenneth Hoyt and Vanessa Gilmore, presided over an extensive pre-trial exchange of evidence. She interviewed Merck scientists and marketing executives and has a repository of 4 million pages of documents under court seal.

She said the case of Keith Jerome Stubblefield, a 37-year-old Vioxx user who suffered a fatal heart attack, was ready to trial on May 5 before Judge Gilmore.

“It’s better for us to be in Houston because the judge here is handling cases,” Lewis said. “That is the single most important factor in litigation as large as this, where time is going to be really important.”

Merck told the Judicial Panel on Multidistrict Litigation that Baltimore is best because federal Judges Catherine Blake and Alexander Williams, who have three cases between them, are far along in the pretrial process. The panel is expected to hold a hearing in mid-January and rule later on the best city for the federal suits.

Becnel said that the company should settle the cases globally, and not fight them individually, before it’s too late.

“Merck has one shot at trying to get their company saved in the next few months,” Becnel said. “If they don’t get to a settlement table quick, where you can negotiate an amount of money, who should be paid and who should not be paid, their company is history.”

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