Lawyers Herd Vioxx Cases Into State Courts

By LINDA A. JOHNSON
The Associated Press
Monday, October 24, 2005; 7:46 PM

TRENTON, N.J. -- Lawyers for plaintiffs in the massive litigation over withdrawn painkiller Vioxx are banding together a legal "dream team" that plans to push all their future lawsuits into state courts, considered less friendly to defendant Merck & Co.

Houston lawyer Mark Lanier and New York attorney Perry Weitz have assembled a legal team of at least 10 law firms and 350 lawyers, Lanier told The Associated Press Monday. In addition to pushing the lawsuits to state courts, the effort is aimed at forcing Merck to start "trying to resolve cases fairly" with settlements instead of fighting each in court, Lanier said.

"We've got the best courtroom lawyers, we've got the best mass tort lawyers ... and we've got the best negotiators that America has to offer working together on a dream team that is Merck's biggest nightmare," he said. "We call it kind of the 'Legal Godfathers.'"

Meanwhile in Atlantic City, where Merck is wrapping up its defense in the second Vioxx product liability trial, the company suffered a setback Monday when the judge turned down its request to let jurors see a U.S. Food and Drug Administration document the company considers crucial to its case.

During a conference call with analysts at which Merck discussed its third-quarter earnings report, general counsel Kenneth Frazier said the company was sure its strategy of fighting every lawsuit remains correct.

"We expect to oppose any attempt to splinter, to disrupt the operation of the MDL," Frazier told the analysts, referring to multidistrict litigation in federal court. In the MDL, pretrial evidence-gathering for thousands of Vioxx suits is consolidated to save time and prevent Merck officials from having to give repeated depositions.

Merck outside counsel Ted Mayer said the company also prefers keeping cases in the MDL because that gives Merck consistent rulings on standards for admitting evidence and for expert testimony. He added that Merck has plenty of legal teams to handle simultaneous trials.

For plaintiffs, evidence rules in state courts generally allow more leeway. Lanier said Merck expected to fight most Vioxx cases in federal courts in the MDL, but he expects to have 10 legal teams running state trials nearly continuously, tying up Merck resources. Lanier said his lawyers' group already has about 18,000 potential lawsuits awaiting filing.

The lawyers will share depositions, documents and legal strategies, according to Lanier, who in August won a $253.4 million verdict for the widow of a Texas Vioxx user in the first Vioxx trial. That will be reduced to about $26 million because Texas caps punitive damages. Merck shares rose 82 cents, or 3.1 percent, to $27 in trading on the New York Stock Exchange.

Whitehouse Station-based Merck withdrew Vioxx from the market in September 2004 after research showed a doubled risk of heart attack and stroke for people using the drug for at least 18 months. The company already faces roughly 7,000 Vioxx product liability suits.

"I would be surprised if Merck would just cave (and settle cases) simply based on having to have lawyers run in a lot of different directions," said Deborah Barnard, a Boston lawyer specializing in product liability cases.

New York attorney Michael London, who is handling more than 100 Vioxx lawsuits but is not on Lanier's team, said Lanier's strategy is a good one because it makes things less predictable for Merck.

With nearly all the lawsuits so far filed either in New Jersey or federal court and just two judges overseeing those cases now, London said Merck can expect consistent rulings and know when its next cases will be scheduled for trial.

"Who knows what some 30, 40 state court judges might do?" London said, with trial schedules and evidence rulings. By law, cases filed in Merck's home state of New Jersey cannot be moved to federal court. Merck can automatically move to federal court any cases filed in other state courts and the small number of class-action cases filed so far.

If a state court plaintiff also names a second defendant, such as a doctor or pharmacy, in that plaintiff's home state, usually the case cannot be moved to federal court. However, Mayer said Merck has persuaded state judges in "a fairly large number" of such cases to transfer them to federal court, arguing the second defendant is not a bona fide target.

In the Atlantic City trial, Superior Court Judge Carol Higbee, who had blocked Merck's move to put the FDA memo in evidence before the trial started, rejected it again Monday after hearing from an expert cardiologist hired by Merck who called it "scientifically reliable."

The 19-page memo, issued last April, said other anti-inflammatory drugs also carry a risk of heart attack, stroke and death. Higbee, who said she read the memo 10 times before she understood what it was saying, said giving it to jurors would confuse them but not shed any light on the questions they will have to decide, in part because it was issued long after the 2001 heart attack suffered by plaintiff Frederick "Mike" Humeston.

"We do think it's relevant information the jury should be allowed to hear," Merck spokesman Jim Fitzpatrick said after the ruling. Merck has acknowledged links between Vioxx users and heart attacks after 18 months' use but contends Humeston was stricken for other reasons.

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