Dozens of lawyers filed into a federal courtroom Friday for a first pre-trial hearing in the federal Vioxx liability case, the start of a legal process expected to be complex, years-long and costly for the painkiller’s maker, Merck & Co.
While largely procedural, the hearing was still important for Merck’s attorneys and those representing the legions of plaintiffs. It gave a first chance to make an impression with the judge, as well as to influence the timetable for the litigation.
Last month, Judge Eldon E. Fallon of the U.S. District Court for the Eastern District of Louisiana was assigned to coordinate all the pretrial motions and discovery in federal liability cases involving Vioxx, which was removed from the market last year after a study showed it increased the risk of heart attack and stroke among users. More than a thousand lawsuits have been filed.
The hearing was given the courthouse’s largest room because so many lawyers have applied for a spot on the plaintiff steering committee, and were expected to attend. 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.
It can help a lawyer attract more cases in the litigation, as plaintiffs seek the highest-profile lawyers with the most apparent influence.
Drug industry analysts have differing estimates of Merck’s potential total liability in the Vioxx cases, but they are all huge: 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.
“I’ve been doing this for a lot of years and this (Vioxx) is the largest exposure we have seen in a number of years,” said Russ M. Herman, a New Orleans lawyer who is now the plaintiffs’ lawyers liaison to the judge. He spoke by telephone before the hearing.
Herman expects more than 100 lawyers to apply for the committee and believes the judge will select between eight and 14 attorneys. The deadline is later this month.
Lawyers expect that Christopher Seeger of New York and Andy D. Birchfield Jr. of Montgomery, Ala., will be selected for the committee. Both have multiple cases and had been working on Vioxx cases before the drug was removed from the market.
Judges customarily select lawyers with extensive experience in product liability, who represent a number of plaintiffs in the case and whose firms have the money to fund their participation in a case likely to last years.
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.
Two state cases are slated to begin in May. Birchfield says he has a May 23 court date in Ashland, Ala., to try the case of a 43 year-old who had a heart attack and died while taking Vioxx. Lanier said he has a case scheduled to begin May 31 in Angleton, Texas, involving a 59-year old man who died of a cardiac arrhythmia while taking Vioxx.
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.