http://query.nytimes.com/gst/abstract.html?res=F20C15F63F580C768CDDA80994DC404482
undreds
of plaintiffs' lawyers who claim that people were injured or
killed by the painkiller Vioxx plan to meet next week to lay the
groundwork for a nationwide legal assault against the drug's
maker,
Merck.
The lawyers expect the discussions to begin
informally on Tuesday in Pasadena, Calif., in the hallways of a
conference on Vioxx litigation that will also be open to defense
lawyers. On Thursday, at a meeting in Las Vegas for plaintiffs'
lawyers only, those who are suing Merck, or plan to, expect to
discuss specific strategies.
"We can't compete with big pharmaceutical
companies by ourselves, but when we get together, we can become
formidable," said
Daniel E. Becnel Jr., a lawyer in
Reserve, La., who has led such organizational efforts in other
drug cases and in tobacco litigation. "This is a case that needs
to be managed by the premier lawyers in the country."
J. Michael Papantonio, a lawyer in Pensacola,
Fla., who organized the Las Vegas meeting, said about 500
plaintiffs' lawyers were expected to attend.
Even before Merck withdrew Vioxx from the
market on Sept. 30, citing what it said was new evidence that
the drug increased the risk of heart attacks, strokes and other
serious ailments, hundreds of patients had filed lawsuits around
the country. Since then, countless other lawsuits have been
brought - no one yet has an accurate figure - and more are
expected.
Merck, which has said it withdrew the drug as
soon as it had conclusive evidence of unacceptable risk,
declined to discuss its defense strategy.
This week, the incentives to sue have
multiplied. The Food and Drug Administration published a report
on its Web site on Tuesday by a staff researcher, concluding
that more than 27,000 deaths could be attributed to Vioxx based
on comparisons with how patients taking other painkillers had
fared.
Yesterday, The Lancet, a respected British
medical journal, published an analysis of all the clinical
trials of Vioxx completed by 2001, and concluded that Merck and
the F.D.A. should have known enough about the drug's hazards to
withdraw it years ago.
The plaintiffs' lawyers plan to compare notes
next week on the types of clients who may make the strongest
cases, with a premium on people who were in demonstrably good
health before taking Vioxx.
The group also intends to discuss ways to
cooperate in gathering evidence and expert testimony, and in
devising tactics to influence where the bulk of the cases may
end up, as state and federal judges consolidate them. Until such
matters are resolved, how soon any of the cases may come to
trial is uncertain, including one that had been expected to
begin as early as next month in federal court in Birmingham,
Ala.
Many lawyers will also be jockeying for roles
that will maximize their influence, and ultimately their
reimbursement, as the litigation unfolds.
More than 20 million Americans have used Vioxx
since it went on the market in 1999. Millions more used the drug
overseas. Based on the number of Vioxx customers and the
seriousness of the injuries, the Vioxx lawsuits would appear to
have the potential to dwarf recent cases like the one against
Baycol, a cholesterol-lowering drug used by about 700,000
Americans, and the one against the diet supplement fen-phen,
which an estimated six million people took.
Baycol's maker, the
Bayer Group of Germany, said in late September that it had
paid $1.09 billion to settle 2,861 lawsuits and that 7,577 suits
were pending. And
Wyeth, the marketer of fen-phen, faces continuing legal
battles with plaintiffs who opted out of a settlement program
that pays victims from a $3.75 billion trust fund. Wyeth has set
aside $16.6 billion to cover its liabilities.
Many plaintiffs' lawyers say it is too early
to make a realistic assessment of Merck's financial
vulnerability. Merck has long been among the strongest companies
financially, with a credit rating among the highest in American
business.
In their meetings next week, the lawyers are
likely to weigh the potential impact of this week's national
elections. There were big gains for Republicans, who have been
leading efforts to curb product liability lawsuits. A related
concern for the plaintiffs' lawyers is the F.D.A.'s continuing
efforts under the Bush administration to persuade judges that
F.D.A. approval of a drug, along with warnings on the label,
should go a long way toward shielding the maker from lawsuits.
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So far, most state judges have
rejected the F.D.A. immunity argument. But if
courts began to accept it - or if Congress made
it the law of the land - plaintiffs' lawyers
would have the higher hurdle of arguing that
Merck deceived the F.D.A. by hiding or
distorting damaging data. That case would be
hard to make without supportive testimony from
the agency, some lawyers said.
The personal injury lawsuits -
or tort cases, as lawyers call them - can be
filed in state or federal courts and in many
cases can name other parties, like doctors or
drug distributors, as co-defendants with Merck.
In the hundreds of Vioxx
lawsuits filed before Merck took the drug off
the market, the action was primarily in New
Jersey, where Merck is based, and the big states
of Texas and California. But the financial
burden of taking on a giant like Merck while it
continued to insist that Vioxx was safe and
effective scared away many lawyers.
"It's been a quiet little mass
tort for a long time," said Carlene Rhodes
Lewis, a Houston lawyer whose firm was among the
pioneers when it began filing Vioxx complaints
in 2001. Ms. Lewis and her partners took on
nearly 300 such cases by the time Merck pulled
the plug on Vioxx.
Merck's withdrawal of Vioxx
has made it much easier for lawyers to argue to
a jury that the product should not have been on
the market. But proving liability could still be
difficult.
The data from clinical studies
suggest, so far, that the most serious health
problems hit patients who had used Vioxx for 18
months or longer. Merck has said it does not
know yet how large that group is.
In addition, many possible
Vioxx victims may find it difficult to pin their
health problems on the drug if forced to go to
trial, lawyers who filed the early cases said.
The injuries linked to Vioxx are also common
among people who have not used the drug, and
they have many causes.
"The person who should never
have taken Vioxx and should have been warned by
Merck, the person with multiple risks of cardiac
problems, may not make the best client, because
it may be harder to prove that Vioxx caused the
heart attack," said Cynthia Anne Solomon, a
lawyer in Mount Pleasant, S.C.
As a result, the pioneering
plaintiffs' lawyers in the Vioxx litigation have
been carefully screening potential clients in
search of those who were relatively healthy
before they took the drug and suffered injuries.
Some of those lawyers said they were worried
that lawyers who rushed into the field after
Merck withdrew the drug, including law firms
soliciting clients with radio and print
advertising, would muddy the legal landscape
with questionable claims.
"For every hundred calls we
get, there are only two or three top-end cases,"
Mr. Papantonio said.
He and others said that Merck,
if it follows the course of other drug companies
in similar situations, is likely to try to
settle the strongest cases against it and fight
some of the weaker claims in trials. If it wins
those trials, it could knock down the settlement
value of the vast majority of claims against it
and cut billions of dollars from its potential
exposure.
Merck recently asked the panel
of judges that supervises the way mass torts are
handled in federal courts to assign all of the
lawsuits to one judge.
Mr. Becnel filed a similar petition.
The panel is expected to hear
arguments on the petitions and where the cases
should be consolidated at its January meeting.
Many lawyers involved in the
lawsuits say the federal consolidation process
should hasten final settlement of most of the
Vioxx cases. The state cases in New Jersey and
California have already gone through such a
process.
But the effort to centralize
the federal cases while sorting out which cases
will remain in state courts - where plaintiffs'
lawyers usually prefer them - could very likely
lead to procedural battles that may delay the
first Vioxx trials. Several were on course to
begin in the next few months.
"It's up in the air now," said
Andy D. Birchfield Jr., a lawyer in Montgomery,
Ala., who had expected to begin trying a Vioxx
case in federal court in Birmingham as soon as
next month. |
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