Lawyers Organizing for Mass Suits Over Vioxx
November 5, 2004
By BARNABY J. FEDER
Hundreds 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
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
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
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
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.
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
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
"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
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
"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
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
The panel is expected to hear arguments on the petitions
and where the cases should be consolidated at its January
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
"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.