Several lawsuits against the pharmaceutical giant Merck & Co. have stalled in federal court in Mobile, and judges have transferred pretrial proceedings related to the painkiller Vioxx to New Orleans.
The latest lawsuit affected involves seven plaintiffs who sued the New Jersey-based drug company last month. U.S. District Judge William Steele last week ordered a temporary halt to the litigation. Barring objection from the plaintiffs’ lawyers, U.S. District Judge Eldon E. Fallon in New Orleans will oversee the efforts by lawyers to take depositions from witnesses and gather other information.
In February, a group of federal judges known as the Judicial Panel on Multidistrict Litigation determined that Fallon would handle such pretrial matters in the federal cases. Fallon reportedly was selected because of his experience presiding over trials involving complex pharmaceutical litigation.
After the pretrial discovery is complete, the local cases will be transferred back to District Court in Mobile for trial.
“We’re kind of in a holding pattern right now,” said Andrew Citrin, a Daphne lawyer who represents several of the plaintiffs.
Lawyers representing Merck stated in a written request for a temporary delay that consolidating discovery in one court makes sense for reasons of efficiency.
“There is no dispute that this case involves the same factual inquiries that the Panel (on Multi-district Litigation) notes were present in the Vioxx cases generally, thereby warranting coordinated pretrial proceedings,” the motion states.
Merck yanked Vioxx from the market on Sept. 30 after its research indicated long-term use of the anti-inflammatory drug sharply increased the risk of heart attacks and strokes. Since then, new information has suggested that those medical problems may be associated with an entire class of painkillers. The company has discussed the possibility of putting the drug back on the market but has made no firm commitments.
Analysts have estimated that Merck’s legal liability ranges from $4 billion to $30 billion.
Merck officials have said hundreds of lawsuits have been filed in state courts across the country. One of them—brought by the prominent Montgomery law firm of Beasley, Allen, Crow, Methvin, Portis & Miles before Merck pulled the drug from the market—is scheduled to go to trial next month in Clay County Circuit Court. It would be the first Vioxx lawsuit in the nation to reach trial.
In addition to the state cases, according to Merck, 151 federal cases have been filed.
At least three of them were filed in U.S. District Court in Mobile. Judges have transferred pretrial proceedings on two of those. Citrin technically has until April 18 to oppose the transfer in the third, but he said there is little point.
“We’ve done it in the past, and it’s worthless,” he said.
The lawsuit originated in Mobile County Circuit Court, but Merck got the case transferred to federal court. The allegations in the complaint mirror those contained in the hun dreds of other Vioxx lawsuits across the country.
“They’ve had the predictable and proven side effects,” Citrin said. “Some are more serious than others, but they’ve all had the heart attacks and strokes.”
Jim Fitzpatrick, an attorney representing Merck, said he remains confident that the evidence will show the drug manufacturer has acted responsibly.
“It is important to remember that each one of these cases have their own facts. These are individuals,” he said.
Fitzpatrick also noted that the plaintiffs must prove a cause-and-effect relationship between Vioxx and their medical conditions. Many may have suffered strokes and heart attacks for reasons unrelated to their use of the drug, he said.
“That’s a difficult burden,” he said.
A committee of lawyers will take depositions and make requests for records and other documents. Citrin said he will have an opportunity to submit questions.
Citrin and Merck’s Alabama-based lawyers, meanwhile, can question witnesses related specifically to the local cases.
Citrin said discovery in consolidated cases usually is “very ably” done. And he acknowledged arguments that it is more efficient having one judge oversee discovery.
“But it really means a lot of times that we local lawyers lose control,” he said.
The Merck motion argues the company would be “significantly and unfairly prejudiced” if the cases in Mobile and other courts were allowed to proceed. For example, the motion contends, employees of the company likely would have to submit to multiple depositions in multiple jurisdictions, answering essentially the same questions over and over.
Any delay to the plaintiffs, the motion states, would be minimal and “the prejudice to Merck would far outstrip any harm to Plaintiffs.”