The first federal lawsuits against drug giant Merck & Co. over its withdrawn painkiller Vioxx could happen in the late fall, according to lawyers gathered here for a monthly status conference on the massive litigation. 

Over 3,500 individual suits had been filed against Merck as of June 15 in state and federal courts nationwide.

Vioxx was taken from the market last September after a study showed it doubled patients’ risk of heart attacks and strokes. The wrongful death and injury lawsuits against the company contend it hid Vioxx’s risks. Analysts say the company’s liability could be as high as $18 billion.

The first state trial begins next month in state court in Angleton, Texas. Two other state cases are due to be heard in Texas in September, and a fourth is scheduled for New Jersey.

The federal action is in New Orleans because a U.S. District Court judge Eldon Fallon has been assigned the task of initially presiding over all the pre-trail motions in the cases. Once that is done the cases will go back to their original districts.

The first few federal cases will be tried here, and will be ones that were filed In New Orleans. Lawyers said the “discovery” process – the task of gathering and sifting evidence – is being orchestrated.

Lawyers said the goal for both sides, as well as Judge Fallon, is to choose initial cases that will aid courts in subsequent proceedings – cases in which broader Vioxx issues arise.

“He’s going to pick cases that will give us information about the universe of cases,” said Phillip Wittmann, an attorney for Merck.

Earlier, Fallon told the dozens of lawyers who fly in here every month that the need is for cases “that will give some variety.” Lawyers said that the first trials could come this November or December.

Both sides said the process of gathering evidence, particularly from the Food and Drug Administration, which had crucial regulatory responsibility, was moving forward, albeit slowly. Wittmann told lawyers that “significant disputes” remain between the two sides about what evidence Merck should turn over, with the company contending that the plaintiffs’ demands are “overly broad.”

Judge Fallon told the lawyers to come up with a plan by early next month to resolve disagreements over evidence.

There was no discussion in court here of Wednesday’s Associated Press report that Merck had privately sought, according to an internal company document, to reformulate Vioxx in 2000 to reduce its risk. The company contended at the time, and subsequently, that the drug posed no health threat.

The document is considered potentially damaging to Merck since it calls into question the company’s defense that it was convinced of the drug’s safety.



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