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Thousands more suits are pending, pitting individual consumers against the giant drug maker.
Bill Janssen, an attorney, specializes in defending companies against pharmaceutical and medical device lawsuits.
"My perspective is the perspective of the industry," said Mr. Janssen, a litigation partner at Saul Ewing LLP in Philadelphia.
Mr. Janssen, who is not involved in Vioxx litigation, talked with BusinessWeekly recently about that initial case and what it means for the thousands of other cases to follow from Northeastern Pennsylvania and around the country.
Q: In all, how much money is at stake in these Vioxx cases?
A: There is really no way to know. As you saw from the Texas verdict, each state has its own set of tort rules. Those are really going to impact the very substantial verdicts like you saw in Texas. That verdict came in at $253 million, and as a result of the punitive damages cap, the ultimate verdict is one-tenth of that or less.
The ultimate exposure depends on all the jurisdictions where these cases are filed, and the laws applicable to the tort claims in those jurisdictions.
Q: About half of the cases are filed in New Jersey, where Merck has its headquarters. How will laws affect the potential damages in those cases?
A: New Jersey also has a cap. It is a fairly modest cap but it has a "not to exceed" number. It prevents the sort of runaway verdict potential that you saw in Texas.
Q: How do you feel about the fairness of that first verdict from Angleton, Texas, in August?
A: It speaks first to the jurisdiction that rendered it. It has proven to have large verdicts in the past. It is drawing from a population base (in Houston) that is known historically as a very unpredictable jurisdiction.
Q: Some people said the Texas jury decided by emotion more than science. What do you think?
A: I don’t fault the plaintiffs lawyers for this. Every jury trial is a story, and the story needs to be communicated to the jury in a way that, one, they understand it and, two, they are convinced.
The story that (plaintiffs attorney W. Mark Lanier) used was a story you would expect him to use, and he used with great effect. It will be interesting to see in the post-trial motions and on the appeal whether or not any of the boundaries of proper advocacy were crossed.
I thought there was a very significant chance that if the jury really listened to the evidence, there would be a finding in favor of Merck.
Q: Can you elaborate on how the plaintiffs attorney approached his case?
A: The strategy had a lot to do with religious references, biblical references, an appeal to the concept of a small consumer versus a big defendant organization.
I think at the end of the day, what the jury in Texas missed was the farce. There was an enormous amount of countervailing evidence that suggested the company was perhaps proceeding very conservatively with the medical evidence that was being received, but certainly appropriately so.
Q: How much does this first case matter to the thousands of others waiting in the wings?
A: It’s too small of a sample to know. If there were 12 cases or 20 cases, and they are all tried in different jurisdictions, that would tell you a lot more.
One isolated case is tough to generalize.
Q: What about the second case now underway in New Jersey?
A: I think it is more predictive than the Texas verdict would be. It will probably be tried to a jury population that is much like the jury population that the other cases are going to be tried in front of.
It’s a tough thing to predict, though, even within the same jury structure.
Q: If Merck continues to lose verdicts, how much can the company take before it offers a settlement?
A: I think the company can go the whole way. Most jurisdictions now have more responsible caps on non-economic damages.
They would want to wait and see a substantially larger number of cases reach verdict before they take a good, hard look at (a settlement). That’s not something you decide on the basis of one, two, five or 10 cases. You wait and see a much larger number before you are forced to make a decision like that.
Q: Recent years have seen other national liability cases, such as the anti-cholesterol drug Baycol, the diet drug fen-phen, and defective silicone breast implants. Are any previous cases instructive of the Vioxx cases?
A: All of those are useful instructions, but what I learned from all those is that there is no product liability, mass-tort case that is identical to any other one. All of them have scientific and medical uniqueness.
Some of those mass-torts resulted in a global settlement, others resulted in almost no settlements of any sort and essentially an abandonment of the claims because the juries were rejecting time and again the claims that were being presented.
Q: If you were setting odds in Las Vegas, how would you predict the Vioxx saga playing out?
A: My sense is that it’s going to become an incredible mixed bag.
There are going to be some verdicts that are going to be surprising, like in Texas. There are going to be other verdicts that are just going to be baffling to the plaintiffs bar because they come back with a defense verdict or a very, very minor award. The result is going to drive to the middle.
What’s going to happen first is a period of time just sounding out how juries are reacting, and taking stock of what they say.
Contact the writer: jsonderman@timesshamrock.com |
