Merck makes billions of dollars selling medicines, but could lose billions at the courthouse.
When the pharmaceutical company pulled painkiller Vioxx off the market Sept. 30—after a study linked it to heart attacks and strokes—lawsuits against the drug maker were already under way across the country. More are being filed every week.
A mass tort case based in state court in Atlantic City involves nearly 300 lawsuits, and lawyers predict the number could ultimately reach in the thousands. Merck could end up paying out billions of dollars in judgments and settlements.
Collectively, the Vioxx lawsuits will challenge the credibility and financial wherewithal of one of the most venerable pharmaceutical companies in the world. At the forefront is likely to be New Jersey, where some of the first cases could go to trial.
The case will involve an army of lawyers, challenge the science behind a breakthrough medicine, raise questions about the drug approval process in America and test the temperament of a single Superior Court judge.
Here is a look at some of the people who will play important roles.
For Christopher Seeger, it started with a telephone call.
A fellow tort lawyer in Texas told him two attorneys in Houston, Carlene Lewis and Shelly Sanford, were looking into a handful of claims blaming Vioxx for heart attacks in otherwise healthy individuals.
The Houston lawyers needed the help of a law firm with more resources and more experience going up against giant drug makers.
“Initially, I was very skeptical,” Seeger said. “I knew enough about Vioxx in 2001 to have seen the ads on TV, and I knew several people on the drug. My attitude going into this was, I don’t hear anyone complaining about the drug.”
Months later, Seeger read an article in the Lancet, an edgy British medical journal, about the science behind Vioxx and other Cox-2 inhibitors, a relatively new class of painkillers. The article by Wayne Ray, a professor at Vanderbilt University’s medical school, described how Vioxx posed a danger to the cardiovascular system.
Seeger quickly arranged lunch with Sanford and Ray. In a small sandwich shop near the Vanderbilt medical school, the lawyers got a crash course in the science of Merck’s top-selling pain medicine.
“I walked away from that meeting thinking Carlene and Shelly were right. There is a problem,” he said.
Now, Seeger, 44, is in line to lead the court battle against Merck.
The lead role typically goes to a lawyer at a firm that has done the lion’s share of work on a large case. Seeger’s New York firm, Seeger Weiss, has helped produce millions of documents in discovery. His colleague, David Buchanon, has taken depositions from dozens of people, including former Merck employees and company executives.
A native of New York, Seeger is the son of a union carpenter. After high school, he spent five years working as a contractor with his brother to pay for college tuition and ultimately earned a law degree from the Benjamin N. Cardoza School of Law. From there, he landed a job at Shearman and Sterling, a giant corporate law firm in Manhattan. After nearly two years, he headed out on his own—switching sides in the process.
“We only represent the little guy. It’s just the side I feel more comfortable with. I love the David and Goliath aspect of this,” Seeger said. “Big companies hate that a guy like me will take them on. They hate that we put them on a level playing field.”
Lewis, the Houston attorney, said Seeger is a natural leader. “If you’re going to be working with someone over a period of time, the more important thing is the character of the man,” she said. “My impression of him is he is a man you can trust, a man you can trust to do the right thing.”
THE PUBLIC VOICE
Andy Birchfield spends a lot of time lately talking about the big picture.
With the fervor of an evangelist, the Alabama attorney described the human toll of Vioxx and the documents he said refute Merck’s defense that it acted responsibly by taking the drug off the market when it did.
“What we know is very disturbing,” Birchfield, 40, told a conference of tort attorneys gathered in Pasadena last month.
Birchfield, who heads the mass tort division at the Beasley Allen law firm in Alabama, has become the voice of the plaintiff attorneys preparing to battle Merck in court.
“Our objective is to make sure the individuals are compensated for their injuries,” he said. “I certainly hope the impact is much larger. “I hope this catastrophe with Vioxx is a wake-up call for this country and a driving force for change in the way the Food and Drug Administration works.”
A devout Baptist, Birchfield is chairman of the deacon’s board at First Baptist Church of Montgomery. In 1997, he took his faith to the office, starting a weekly Bible study.
Birchfield, who grew up in a small city 30 miles outside Birmingham, has handled a variety of lawsuits, but focuses on tort law. “I’m a Christian, and I believe the guiding principle in my life is to be like Christ,” he said. “When I can give someone a voice, when I can really help someone, that’s what drives me.”
If tort law is also profitable, well, that allows him and his firm to wage more battles against alleged injustices, he says.
“Fighting major companies is costly,” he said. “Without the success we’ve enjoyed, we would not be able to make a difference.”
More than a year before Merck pulled Vioxx from the market, lawsuits were already piling up.
By last May, the number of cases reached 30, leading state Supreme Court officials in New Jersey to designate the Vioxx litigation, including all future lawsuits, as a mass tort—a way for the court to manage a large number of cases.
That is how all 300 cases so far in New Jersey landed before Superior Court Judge Carol Higbee in Atlantic County.
Higbee, 54, is a former personal injury attorney who handled medical malpractice suits during the course of her 17-year career at an Atlantic City law firm. She declined to comment for this story.
A native of Indiana, Higbee graduated from Temple University, where she also earned her law degree and became one of the first female lawyers in Atlantic City.
“She is very intelligent, highly motivated and very honest,” said Don Targon, an Atlantic City lawyer who hired Higbee fresh out of law school in 1976. “She has the ability to hone in on the critical issues and not get distracted.”
The mother of two is considered by attorneys as fair, hard-working and respectful of all sides.
Lou Barbone, who has appeared before Higbee at least three times, said he has sometimes seen the judge carrying trial boxes home with her and returning with them the next day. “Most of the time I’ve spoken with her, she was packing or unpacking her materials,” Barbone said.
That may serve her well with Vioxx, her first mass tort case. Attorneys expect the number to reach several thousand by spring, when the first could go to trial.
She will have her work cut out for her, said Alfred Wolin, a retired U.S. District Court judge who presided over several high-profile mass tort cases, including litigation against Prudential.
Consider this, he said.
The Prudential case involved 1.8 million claims, lasted seven years and resulted in 708 orders and opinions, Wolin said. Documents from the case, an assortment of motions and orders among them, fill at least eight large, loose-leaf- styled notebooks.
A judge in a mass tort case will handle thousands of details, from selecting a case heading to coordinating discovery among attorneys, Woli
n said. But the biggest challenge may be staying organized and keeping the case moving.
“You’ve got to keep people’s feet to the fire,” he said. “You’ve got to keep control.”
Until recently, the most challenging case Ken Frazier ever faced involved exonerating an Alabama man on death row.
The eight-year effort, which spanned much of the 1990s, was unlike anything else the buttoned- down corporate attorney has attempted. But the experience of fighting an uphill battle—against great odds—is likely to prove useful.
“The first thing he told me was that he was a corporate lawyer, not a criminal lawyer, but that he would get me out,” said James “Bo” Cochran, 62, who is now a construction worker in Birmingham, Ala. “I talked to a lot of guys on death row and they want his name. We all think he’d make a good criminal lawyer. He really knows how to talk.”
Frazier doesn’t expect to revisit that role, but as Merck’s general counsel, he faces an equally arduous task. Besides the thousands of lawsuits about Vioxx, Merck also faces federal investigations into the company’s handling of side-effect data. Wall Street estimates Merck’s liability will reach anywhere from $10 billion to $38 billion.
In short, it’s a mess, and it will linger for years. All of which means Frazier, who joined the drug maker 10 years ago, needs to come up with a strategy to manage and contain Merck’s legal problems.
“I’m not worried. I’m confident in our ability to defend the company,” said the 50-year-old Harvard Law School graduate who grew up in north Philadelphia, where his father was a janitor. “But I don’t want to say it’s all on my shoulders. We have a team of lawyers here and, of course, outside counsel.”
As the legal point man, though, Frazier must ultimately decide the best strategy for limiting the cost of the lawsuits. The implications are immense, because the expense and protracted distractions could so weaken Merck that another drug maker may become tempted to acquire the company.
“He faces a task of mammoth proportions,” said Robert McNair, associate general counsel at the Children’s Hospital of Philadelphia and a former partner at Drinker Biddle & Reath, the Philadelphia law firm where Frazier worked before joining Merck. “But he’s a bright, fairly hard-nosed guy. And he’s very capable.”
THE HIRED GUN
For more than two decades, Theodore “Ted” Mayer has toiled in courtrooms around the country, defending some of America’s largest corporations in product liability cases.
He has assisted companies that made or sold asbestos, cars and blood products that consumers claimed caused harm. Along the way, he has gained sufficient stature to become a partner at Hughes Hubbard & Reed, a prominent law firm based in New York, and he has co-authored a textbook on product liability law.
Now, he may have his first taste of wider renown.
Although Vioxx was withdrawn only recently, lawsuits were filed against Merck more than two years ago based on claims the painkiller was linked to heart problems. Since then, Mayer has represented Merck and helped the drug maker form a defense strategy. As a result, Mayer finds himself as the lead outside counsel—the attorney who will help plot and execute legal strategy, and also make court appearances.
“Right now, this is my highest- profile litigation,” said Mayer, 52, a Boston native and Harvard Law School graduate, who relishes his low profile. “But generally, I try to be a strong and effective advocate for my clients, and not make a lot of noise about who I am.”
The boyish-looking attorney wins praise from colleagues, both for his intellect and his approach. Sara Gourley, a partner at Sidley Austin Brown & Wood in Chicago who has worked alongside Mayer in defending several product liability lawsuits, said he has a “calm but persuasive manner,” which makes him easy to work with.
And Diane Sullivan of the Dechert law firm, who is working alongside Mayer in the Vioxx litigation in New Jersey, said: “He’s as tough as anybody I’ve seen, but his personal style is disarming, which contradicts much of what the public might think of a litigator.”
“He’s affable, bright. He’s got a very good reputation as being a fair guy and a real good corporate lawyer,” said Sol Weiss of Anapol, Schwartz, Weiss, Cohan, Feldman and Smalley, who is representing consumers in Vioxx lawsuits. “And with Vioxx, he seems to have the litigation under control.”