admin @ Tue, 2005-10-25 14:46
TRENTON - Lawyers for plaintiffs in the massive litigation over withdrawn painkiller Vioxx are banding together a legal "dream team" that plans to push all their future lawsuits into state courts, considered less friendly to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 put together a legal team of at least 10 law firms and 350 lawyers around the country, Lanier told The Associated Press in an interview 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.' "
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 in federal courts 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.
Evidence rules in state courts, on the other hand, generally allow plaintiffs 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 20,000 potential lawsuits, with only about 10 percent filed so far.
That amount 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 long-term use of the drug doubled risk of heart attack and stroke. The company already faces roughly 7,000 Vioxx product liability suits, including one that went on trial in Atlantic City on Sept. 14.
"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.
But 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 cases will be scheduled for trial.
Merck can automatically move to federal court any class action cases, although that's a tiny minority so far, and any cases filed in state courts outside of New Jersey.
If the plaintiff in the state court 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.
Cases filed in Merck's home state of New Jersey, where about half the existing cases are filed, cannot legally be moved to federal court.
In Atlantic City, where Merck is wrapping up its defense against a postal worker who blames his heart attack on Vioxx, a cardiology expert on Monday said in testimony that there is no evidence someone who took Vioxx so briefly was at increased risk of a heart attack.
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