Of the 7,000 state and federal lawsuits pending against Vioxx maker Merck & Co., one-fourth or more get little if any hometown advantage.
The 1,800 or so federal cases are piled together before a single judge in what is known as multi-district litigation. That provides consistency where the rest can be chaotic _ often to the delight of plaintiff’s lawyers _ for a defendant insistent upon fighting most one by one.
In multi-district litigation, or MDL, federal lawsuits are not combined into one mass lawsuit. They are put in the same corral where one judge coordinates all pretrial matters to avoid duplication of depositions of witnesses and document collection.
“Generally, it’s the defendant who wants to be in an MDL. It lets them conserve resources and do everything at one time,” said Dawn Barrios, a New Orleans attorney who leads the committee of attorneys acting as state liaisons to the Vioxx MDL. “It can make a defendant crazy when they have cases going on in state courts, defeating the MDL purpose.”
Whitehouse Station, N.J.-based Merck withdrew Vioxx from the market in September 2004 when a study showed it could double the risk of heart attack or stroke after 18 months’ use. Analysts speculate that litigation stemming from the one-time $2.5 billion seller could cost Merck billions in settlements, judgments and legal fees.
The first of four federal Vioxx trials is slated to begin Tuesday in Houston before U.S. District Judge Eldon Fallon of New Orleans.
Congress in 1968 enacted a law allowing for lawsuits with similar allegations to be transferred to a single federal judicial district for pretrial coordination, said Carl Tobias, a professor at the University of Richmond School of Law.
“It’s quite natural for mass tort cases to proceed under multi-district litigation,” Tobias said, noting past MDLs include lawsuits over breast implants, diet drugs and latex gloves. The Vioxx MDL is among more than 1,600 MDLs that emerged after the law passed.
Once an MDL is created, state lawsuits scattered across the country can be pulled into the MDL at the defendant’s request, Barrios said. Then it’s up to plaintiffs to persuade the judge to send them back to state court. Fallon, who oversees the Vioxx MDL created in February this year, has yet to rule on any such plaintiff requests.
But state lawsuits filed where the defendant is based allow plaintiffs to avoid being pulled into the MDL. More than half of the state lawsuits pending against Merck are in New Jersey before the same judge.
Also, the defendant can agree not to request that other state cases be added to the MDL. Regarding Vioxx, Merck agreed to let Texas cases filed in four counties remain in state court, said Tommy Fibich, a Houston plaintiff’s lawyer.
Those loopholes allow plaintiffs’ lawyers to avoid an MDL, where federal courts are generally seen as more business friendly than state courts.
“Plaintiffs want to exert as much pressure on the defendants as possible and scatter (lawsuits) in as many jurisdictions as possible. The MDL is counter to that philosophy,” Barrios said.
Mark Lanier, the Houston litigator who won a $253 million verdict against Merck last August in the first state Vioxx trial in the nation, and others have assembled a team of law firms and lawyers to push all future Vioxx lawsuits into state courts. Lanier said the team aims to “resolve cases fairly,” but he expects the legal teams to run state trials nearly continuously and tie up Merck’s resources outside the MDL.
Without mentioning Lanier, Fallon in a hearing last month called such an effort “counterproductive” to his desire to eventually settle all Vioxx claims.
But folding state cases into an MDL puts them in control of lawyers on plaintiffs’ and defendants’ steering committees who do the bulk of the pretrial work _ and earn the bulk of the fees.
Lanier said he is focusing on his state efforts _ largely in New Jersey suits _ because he’s not on the plaintiffs’ committee in the MDL.
“I cannot entrust my clients to them,” Lanier said. “So I hope the MDL works well. I want to run alongside it and not frustrate it. But I also want to work my clients’ cases. I can do that in state court.”