Judge sets dates for trio of Vioxx trials

Cases to help build foundation for others

Saturday, August 27, 2005
By John Pope
Staff writer
The Times-Picayune

A federal judge in New Orleans has set trial dates for early next year in three of the thousands of lawsuits brought against the manufacturer of the pain medication Vioxx, an attempt to give lawyers for both sides an idea of how juries will react to the complaints about the drug.

The trials will start Feb. 13, March 13 and April 10 before U.S. District Judge Eldon Fallon, though the actual cases to be tried have not been selected.

Fallon, who was assigned to conduct the nationwide pretrial phase, set the dates at the monthly status conference on the process. It was the first such meeting since a Texas jury on Aug. 19 awarded a widow $253.5 million in the first trial of a Vioxx suit.

In February, a federal panel gave Fallon the task of streamlining such processes as gathering evidence and taking depositions in the federal Vioxx cases.

Fallon told attorneys for plaintiffs and for the pharmaceutical company Merck & Co., which produced Vioxx, to divide the lawsuits into three categories based on such criteria as the length of time someone took Vioxx or a side effect the drug allegedly caused, and then to pick one representative suit from each category.

"This will give a taste of each kind of litigation," he said. "It will be most instructive."

If the lawyers cannot agree on cases, Fallon said he will make the selections.

Philip Wittmann, a spokesman for the defense lawyers, estimated each trial will last two weeks.

There will be plenty from which the attorneys can choose. As of Thursday, 1,811 federal cases had been filed in New Orleans, and about 290 are en route, Wittmann said.

Fallon said the total may approach 6,000 in the next six months.

The suits claim Vioxx, a popular drug that the federal Food and Drug Administration approved in 1999, caused heart attacks or strokes that sometimes were lethal. Merck took it off the market Sept. 30.

The first federal Vioxx trial is scheduled to begin Nov. 28 before Fallon. The plaintiff is Evelyn Irvin Plunkett of Florida, who sued Merck after her husband, Richard Irvin Jr., 53, died of a heart attack in May 2001, a month after he started taking Vioxx for back pain.

At Thursday's session, Fallon told the lawyers to start working on questionnaires that potential jurors will have to fill out, as well as the charge he will deliver before jurors start to deliberate.

Although most Vioxx suits are expected to be tried in the districts where they were filed, Fallon may conduct some trials if both sides agree.

Thursday's conference was the first since a state court jury in the first Vioxx trial ordered Merck to pay $253.5 million to the family of Robert Ernst, a 59-year-old Texas marathoner who died in 2001 after taking Vioxx for eight months. A state cap on punitive damages will reduce that award.

In discussing that loss for Merck, Wittmann said, "You always take that risk when you go before a jury."

There are nearly 2,900 Vioxx suits in state courts, Wittmann said.

Although a federal suit may carry a certain amount of weight and prestige, plaintiffs might choose the state court route because they think they have a better chance of winning at a local level, where they might be better known and jurors might be more favorable, said Andy Birchfield, a spokesman for the plaintiffs' attorneys in the federal suits.

Also, he said, preparation of some state-level cases might have been well advanced before February, when a federal panel consolidated federal Vioxx litigation in New Orleans, and the attorneys might have decided to proceed where they were.

Even though suits are advancing in what Fallon called "a dual-track situation," he said participants in federal and state cases should keep in touch to learn from each other.

"It seems to me that there's an opportunity for coordination, so the states can have the benefit of the multidistrict litigation and the multidistrict litigation can have the benefit of the states."

In preparing for federal trials, Merck has turned over 10 million documents, Wittmann said.

But Fallon said it needs to move faster. Although he acknowledged the Merck team has done "yeoman work" in producing these papers, he said it "has to move the pace up a little bit."