Gearing Up for the Vioxx Battle - Maryland Physician / Attorneys, Merck, Heart Attacks, Strokes

February 4, 2005
By ANN W. PARKS,
Daily Record Assistant Legal Editor

'Deluged' by calls, lawyers are in a position to be choosy.

Pikesville attorney Robert K. Jenner has already filed several thousand lawsuits on behalf of clients who have allegedly be injured by taking Vioxx. 'As with all pharmaceutical litigation, it's what did Merck know, and when did they know it,' he says. Photo by Max Franz

You hear it in news reports and in the commercials in between, see it in phone books and ads on the internet. "Injured by Vioxx? Heart attack, stroke? You may be entitled to a large cash settlement. Contact our attorneys to discuss your claim."

On Sept. 30, New Jersey-based Merck & Co. Inc. pulled its $2.5 billion-a-year drug Vioxx from the market in response to concerns that the drug caused an increased risk of heart attacks and strokes - prompting speculation of potentially tens of thousands of lawsuits costing billions of dollars.

In Maryland alone, where a handful of Vioxx suits have already been files in federal district court, law firms raising the banner of Vioxx litigation have been busy screening anywhere from a few dozen to a few thousand potential claims.

"We've gotten deluged recently," lawyer Ronald V. Miller Jr. says of calls from clients regarding potential Vioxx claims. Having fielded less than a dozen such calls before Sept. 30, he says, Miller & Zois has now gotten maybe a hundred. "It's the media that drives the ship, the media and all the info that's coming out now about the recall."

Robert K. Jenner, of Pikesville-based Janet, Jenner & Suggs, says he was looking at 50 to 100 claims before the recall; six months later, he says his firm has looked at over 3,000 cases nationwide. "Certainly that's when the floodgates opened and people started calling," he said.

"I am aware that some [lawyers] are amassing cases in the thousands," says attorney Patricia J. Kasputys, who reports that The Law Offices of Peter Angelos is currently investigating several hundred claims.

While numbers like these could let client-hungry lawyers gobble up Vioxx claims like peanuts, several attorneys say they are taking a conservative approach to what was the largest prescription drug recall in history.

"The majority [ask], I'm taking Vioxx, do I have a lawsuit?" says Miller, who says he is looking seriously at fewer than 50 of the cases that have come his way so far. "The answer is, you've been given a drug that's been taken off the market, but that doesn't necessarily mean you have a viable lawsuit, because you don't have an injury."

And it would be a mistake, lawyers say, to sign up cases indiscriminately. "Lawyers will really have to take a careful look at the facts of each case with Vioxx, unlike asbestos, unlike fen-phen, unlike tobacco," notes attorney Thomas F. Yost Jr. of the Yost Legal Group. Having joined the fray after the recall, the firm has taken fewer than 50 of the 500 to 1,000 cases he's seen. "There's going to be a lot of Vioxx death cases in general that no one will ever be able to prove; there was no autopsy or there were other things going on."

Some say they prefer knowing just who their clients are. "We're not a factory," said Jenner, who so far has filed more than a dozen suits nationwide, with several of those in Maryland. "We really pride ourselves on individual contact."

And most are no hurry to file, preferring to wait to see how things play out on the national level.

"There's no need to create the wheel here," said Baltimore-based attorney Bruce M. Robinson. "How these cases develop, how there will be handled, we just have to wait and see."

Last week, a group of seven federal judges comprising the Judicial Panel on Multidistrict Litigation held a hearing in Fort Myers, Fla., to determine where the federal multidistrict litigation for Vioxx will be consolidated.

Although the judges likely won't make a decision for several weeks, defendant Merck wants the federal Vioxx cases to be consolidated in the U.S. District Court in Maryland - or, in the alternative, federal courts in Indiana or Illinois.

"It's one federal judge, in one U.S. District Court in on place, and any cases that end up in the federal court system anywhere in the country automatically get transferred to that judge," Yost explains. "In a case like this, the judge will take care of all pretrial motions, will coordinate the general discovery, document discovery of the defendant, general experts on 'does Vioxx cause heart attacks, does Vioxx cause strokes.'

When this is all done, the cases are remanded to the local federal district courts for trials in the individual cases.

"You have a wealth of information, you have depositions and documents and the science part of the case has been prepared for you," says Miller, who adds that a big part of discovery in pharmaceutical cases is documents. "You're going through sometimes millions of pages of documents-there's probably no single plaintiff's law firm that would be able to do that."

While a very high percentage of Vioxx cases will be filed in federal court - and thus filtered through the MDL - some will remain outside of the process, Yost said. These include state court cases filed in California two years ago that were never removed to federal court; cases filed in New Jersey that cannot be removed to federal court; and federal cases in Texas that will head to trial this spring without waiting for an MDL.

While Merck attorneys have reportedly said that the preferred districts are those that are well-equipped to handle the consolidation of a large number of cases, some suggest that the pharmaceutical company also wants to land in the famously conservative 4th U.S. Circuit Court of Appeals should they lose at the trial level.

"There's different case law in the circuits - the 4th may not see things in the same as the 5th," Yost said, adding that some circuits appear more plaintiff-friendly than others. "I don't think it matters to [Merck] if they are in ... North Carolina or somewhere else in the 4th Circuit, but they've said Baltimore."

Merck will be represented locally in Vioxx litigation by Venable, which referred all calls to Theodore V.H. Mayer of Hughes, Hubbard and Reed in New York.

"The challenge is always to cut through the noise created by plaintiffs' counsel," Mayer said in a telephone interview last week. "The story we have to tell is a good one in terms of the company's conduct, putting patient safety first every step of the way."

"[As] with all pharmaceutical litigation, it's what did Merck know, and when did they know it?" said Jenner and plaintiffs' attorneys. "The question is, did the company act throughout the course of its development and sales and marketing of Vioxx with the concept 'patients' first? We're going to prove that they didn't."

Most Vioxx patient, he said, were people in their 50s or 60s who took the drug for arthritis or pain. Jenner has filed one case on behalf of a 58-year-old man who allegedly suffered three strokes after taking Vioxx for thumb pain; another client is a 69-year-old who allegedly suffered 2 strokes after taking Vioxx to relieve pain in his knee.

"What makes this so incredibly egregious is that there were so many alternatives that were safer," Jenner said. "We're not talking about a cancer drug, we're talking about a painkiller."

"There's a question about whether or not it did provide [an] extra benefit that was the only reason to take this $3 pill instead of a 10-cent over-the-counter," Yost said.

For his part, Mayer - representing Merck - says the plaintiffs' attorneys will have to overcome high hurdles of individual and general causation to show that Vioxx could and did cause these conditions.

"You can look at any of these cases; the event could have happened without Vioxx in the picture."

And the fact that Merck voluntarily withdrew the drug from the market will have implications for both sides.

"The positive things for Merck are, number one, it stops their liability because more people aren't going to continue to get hurt," Yost says. "They'll say we did take the right action when we knew. The battle will be when did they really know."

Just getting to the battleground can be a daunting task, costing a firm tens of thousands of dollars, Robinson noted.

But for some lawyers, who view the Vioxx litigation as a means to impact public health and safety through the judicial system, the potential rewards go far beyond the dollar value of any settlement or verdict.

"I personally think its more fun to represent the individual who's up against a mountain of a pharmaceutical company - representing David over Goliath rather than Goliath over David," said Miller, who used to do class action MDL work for companies such as Bayer. "It's not much fun being Goliath and winning; it's a lot of fun being David and winning."

Law firms that bring Vioxx cases are not hesitating to let potential clients know it - and that's just fine with the competition.

"This is not litigation conjured up by overly aggressive clients or overly aggressive lawyers," says Robert K. Jenner. "There is a huge population of people out there who need to know that they have access to the courts and I think if the ad is done tastefully and gets people to lawyers who know what they are doing with pharmaceutical cases, I have no problem with it and strongly support it."

Bruse M. Robinson says most of the ads are actually pretty bland, e.g., If you took Vioxx, If you suffered, call now.

"Attorneys provide information and help those in need of help," he said, adding that after the recall, his firm made a full-court press to try to obtain cases. "We're not car salesmen."

The firm of Salontz, Kirk & Miles, which did not respond to telephone calls for comment this week, has been pitching a television ad for Vioxx representation touting its pre-recall involvement with such cases.

"We were first and we were right," the ad says. And even that passes muster with Bar Counsel Melvin Hirshman.

"I don't know what it means, "we were right," Hirshman mused, pointing out that the Vioxx litigation is far from over. Still, "the recall by the drug company is sort of an admission," he said. "I'm not too disturbed by it."