The New York Times
February 17, 2005
By BARNABY J. FEDER
Hundreds of individual and class-action lawsuits filed in federal courts against Merck, blaming its painkiller Vioxx for deaths and injuries, will be consolidated in a federal court in New Orleans before a judge that many plaintiffs' lawyers had hoped would receive the case.
The consolidation order that funneled the cases to Judge Eldon E. Fallon, 66, was issued yesterday by a seven-member administrative body of federal judges that rules on motions to centralize nationwide legal battles.
Lawyers for plaintiffs and the company presented their arguments late last month to the seven-judge panel, with both sides agreeing that the growing number of cases made consolidation desirable. Merck had asked that the cases be consolidated in a federal court in Illinois, Indiana or Maryland, but the court in Louisiana emerged as a favorite among the plaintiffs' lawyers.
In its order yesterday, the administrative panel said it was assigning the cases to Judge Fallon because he had the time and experience to handle the Vioxx litigation. He is overseeing a proposed settlement reached in his court last year for all federal injury claims related to Propulsid, a heartburn drug made by a Johnson & Johnson subsidiary.
Propulsid was linked to reports of 80 deaths and hundreds of heart attacks before it was withdrawn from the market in 2000. The Janssen Pharmaceutica unit of Johnson & Johnson has agreed to pay up to $90 million, if enough claimants and potential claimants agree to participate so that the settlement takes effect.
The Vioxx litigation is expected to dwarf the Propulsid cases. Vioxx has been shown to increase risks of heart attack and strokes. It has been blamed for tens of thousands of deaths and an even larger number of nonfatal but nonetheless damaging heart problems. Analysts estimate that Merck's total liabilities in federal and state cases could run as high as $30 billion. The company so far has set aside $675 million in reserves to cover its potential Vioxx liabilities.
Judge Fallon is frequently rated as leaning slightly toward plaintiffs in anonymous evaluations submitted by lawyers who practice in federal courts, according to the Almanac of the Federal Judiciary, an online guide to judges compiled by Aspen Publishers. But the almanac evaluations also characterize him as "extremely fair" and "evenhanded."
Merck, based in Whitehouse Station, N.J., issued a statement yesterday that reiterated its intention to "defend itself vigorously" but avoided any comment on its view of Judge Fallon.
Plaintiffs' lawyers were more effusive. "Both sides got lucky," said Christopher A. Seeger, a lawyer in New York who has taken a lead role in the Vioxx suits and who has appeared before Judge Fallon in the Propulsid cases. "He's going to be right-down-the-middle fair and he is going to move the case."
Judge Fallon, who was nominated for the federal court by President Clinton in 1995 after a long career as a trial lawyer in which he usually represented plaintiffs, has a reputation for being a stickler for deadlines and for moving large cases along rapidly.
It might take as long as two months for all of the Vioxx case files around the country to be transferred to New Orleans. But plaintiffs' lawyers said yesterday that they expected Judge Fallon to call his first meeting of the parties within a few weeks.
The judge's first tasks include naming a committee to represent the plaintiffs. A group of lawyers who began working together last fall said yesterday that they plan to ask Judge Fallon to choose co-leaders of the committee: Mr. Seeger and Andy D. Birchfield Jr., a lawyer based in Birmingham, Ala., who has participated in a number of major drug cases and was among the first to file Vioxx claims in 2001, long before Merck took the drug off the market last September.
Merck voluntarily withdrew the drug, which was its fourth best-selling product, last fall after receiving new clinical data that the company said was the first clear evidence Vioxx posed such dangers. But Merck's critics have argued that the company knew - or should have known - about Vioxx's shortcomings years earlier.
New lawsuits have been piling up in both state and federal courts at an accelerating pace since Merck withdrew Vioxx. As the suits mounted, Daniel E. Becnel Jr., a lawyer in Reserve, La., was the first to file a consolidation motion and was among those who strongly favored assigning the cases to Judge Fallon.
Judge Fallon is a former president of the Louisiana Bar Association who also taught law courses at Tulane University from 1975 to 1993 while in private practice. Mr. Becnel said yesterday that local defense lawyers had been just as enthusiastic as the plaintiffs' bar when Judge Fallon was appointed to the federal court.
Mr. Becnel said that Judge Fallon had shown great skill in the Propulsid cases in coordinating pretrial preparations and settlement negotiations in the state and federal lawsuits. That experience could be useful in the Vioxx cases because many of the leading plaintiffs' attorneys have agreed to work together on both state and federal cases to avoid wasting resources.
"We've already been through 6 million pages of documents and over 60 depositions," said Mr. Seeger, who filed his first Vioxx cases in New Jersey in 2001.
The first state court cases are scheduled for trial in May in Texas and Alabama, as is one federal case in Houston. Plaintiffs' lawyers expect Merck to try to move many state cases to Judge Fallon's court and perhaps to file a similar motion for the federal case in Houston, even though it is nearly ready for trial.
In the Houston case, the estate of Keith Stubblefield, who died of heart failure at age 37, is claiming that his death was caused by Vioxx, which he had begun taking six weeks before his heart attack. Merck contends that Mr. Stubblefield's heart attack was a result of his weight, history of smoking and existing heart disease. Merck has also said that its own clinical data has not indicated Vioxx poses dangers to people who take it for less than 18 months.
Yesterday's consolidation order did not cover the growing number of federal lawsuits that have been filed on behalf of shareholders, whose Merck stock lost a third of its value the day the withdrawal was announced and has still not recovered. Those suits claim that Merck failed to properly disclose Vioxx's risks and the company's potential financial liability for damage claims.
Several of those shareholder cases are before Judge Kurt D. Engelhardt, a colleague of Judge Fallon's in New Orleans. Many lawyers predict the rest of the securities cases will eventually be assigned to Judge Engelhardt.