NEW ORLEANS – Lawyers filed into a federal courtroom Friday for the first pre-trial hearing in the federal Vioxx liability case, the start of a legal process expected to be complex, years-long and potentially very costly for the painkiller’s maker, Merck & Co.
The mood was cordial-at-the-initial procedural hearing, which lasted just over an hour. Russ M. Herman, the lawyer speaking for the plaintiffs, even went out of his way to compliment Merck’s attorneys.
The bespectacled and balding Judge Eldon E. Fallon said he was impressed by caliber of lawyers before him. But he also noted the difficulty of the case and encouraged lawyers on both sides to work together. “Most of the time an agreement you make will be better than one I impose,” he said.
Fallon, of the U.S. District Court for the Eastern District of Louisiana, was assigned last month to coordinate all pretrial motions and discovery in the federal liability cases involving Vioxx. The painkiller was removed from the market last year after a study showed it increased the risk of heart attack and strokes. More than a thousand lawsuits have been filed.
The hearing was held at courthouse’s largest room to accommodate the unusually large number of lawyers, about 175, who attended the session. Plaintiff lawyers flocked to the court house because they wanted to show their interest in the hopes of being chosen to sit on the plaintiff steering committee. There were only eight Merck lawyers present.
“I’m here to show my respect to the court and to the judge,” said Arnold Levin, a Philadelphia-based plaintiff lawyer who wants a spot on the committee. “Being on the committee is in the best interests of my clients.”
The committee works with Merck and the judge to shape the progress of the cases, including the taking of depositions and gathering of documents for evidence.
A spot on the committee helps attorneys attract more cases in the litigation, as plaintiffs seek the highest-profile lawyers with the most apparent influence. There is tremendous interest because of the potential payout.
Drug industry analysts have differing estimates of Merck’s potential total liability in the Vioxx cases, but they are all huge, ranging from $4 billion to $30 billion.
To date, another pharmaceutical maker, Wyeth, is facing the largest legal exposure from a drug, for its diet drug combination known as fen-phen. Last year Wyeth added $4.5 billion to its reserve for settlements and legal costs, bringing the total to $21.1 billion. It has paid out $13.9 billion so far.
Wyeth Co. made two drugs that could be used as one half of the fen-phen combination. Both were taken off the market in 1997 and cases are still pending.
Fallon admonished lawyers to think carefully before applying because of the time and expense such an appointment will require. Fallon said he would select the committee by the next hearing, which he set for April 28.
Herman, a New Orleans lawyer who is the plaintiffs’ lawyers liaison to the judge said 30 attorneys had applied for a spot on the committee so far. Herman expects more than 100 lawyers to apply for what he believes will be between eight and 14 positions.
There were 1,357 product liability lawsuits filed against Merck as of March 9, 2005, according to papers the company filed with the court. Of those, 127 have been moved to Judge Fallon and more than 400 others are expected to wind up in his court.
After all the pretrial activities, the federal cases are returned to their original jurisdictions for trial. Merck had requested the cases be placed under one judge for pretrial motions so it isn’t dealing with hundreds of similar cases in different courts.
Experts said that first federal case could take a year to 18 months to go to trial because the number of cases and lawyers involved slows the process. But in the meantime, discovery on state cases continues. Next week, Merck CEO Raymond V. Gilmartin was slated to be deposed, lawyers said.
Eleven state court dates have been set. The first slated to go to trial is set for May 23 in Ashland, Ala. It involves a 43-year old man who died of a heart attack while taking Vioxx, according to Andy J. Birchfield a Montgomery, Ala. lawyer, who is handling the case.
Some Merck shareholders also have sued the company in federal court, and their cases are handled by District Judge Stanley Chesler in Trenton, N.J.