31 octobre 2005 14:45

Vioxx Lawyer Wants His Next Move to Be in State Court law news

W. Mark Lanier, the Houston lawyer who won a $253.5 million verdict in August in the nation's first Vioxx pharmaceutical suit, wants another shot at a big win. But he wants to do it in state -- not federal -- court, and on his own -- not as part of a multidistrict litigation pool.

He resigned from a state liaison committee in the federal Vioxx MDL on Oct. 24 to concentrate on litigating individual Vioxx suits in state court.

The state liaison committee included lawyers from nine states with heavy Vioxx dockets, says Dawn Barrios, a New Orleans lawyer who leads the committee. The committee's purpose is to help coordinate discovery efforts in the federal MDL with state-court litigation, she says. It is different from the Plaintiffs' Steering Committee, which is the group of lawyers that runs federal MDL efforts on behalf of the plaintiffs.

But on Oct. 24, Lanier sent a letter to the federal judge presiding over the MDL, resigning as Texas representative on the state liaison committee. He is one of several plaintiffs lawyers from around the country with Vioxx suits filed against Merck & Co. Inc. who are now banding together to coordinate discovery and devote their time to trying Vioxx suits in state courts.

"It's our response to Merck's declaration that Merck wants to try all the cases everywhere," says Lanier, of the Lanier Law Firm.

Merck maintains it will try each and every Vioxx suit.

In theory, the plans of Lanier and his small, breakaway group of plaintiffs lawyers to try suits in state court will pressure New Jersey-based Merck to come to the settlement bargaining table. That would happen once a number of Vioxx verdicts are returned in those state court suits, effectively setting a market rate for Vioxx cases.

A second Vioxx trial is under way in state court in New Jersey, but Lanier's $253.5 million suit in state court in Angleton, Texas, is the only one that has been tried to a verdict.

But U.S. District Judge Eldon E. Fallon of the Eastern District of Louisiana, who oversees In Re: Vioxx Products Liability Litigation, also wants to try a number of suits in an effort to set a market rate for settlement.

At a hearing on Thursday in Houston, Fallon told a courtroom full of lawyers working on the federal Vioxx MDL that he's concerned about reports of the intentions of Lanier's state court group.

The plans of Lanier's group are "counterproductive," Fallon said, adding that he would look at ways "formal and informal" to ensure suits move through the federal MDL.

As in most federal MDLs, defendant Merck has removed many of the state court Vioxx suits to federal court, but plaintiffs lawyers have filed motions to have many remanded to state court. Barrios says one major ground to get a suit sent back to state court is for the plaintiff to sue, for instance, a local doctor or pharmaceutical representative.

Fallon said he is concerned that the efforts of Lanier and his group may "either derail or make problematic the MDL process."

Fallon said he wants to try a series of Vioxx suits with different fact patterns over the next few months to "make some sense of what the juries will do with these cases," and hopefully prompt settlement talks. That's a better alternative than trying hundreds or thousands of Vioxx suits in state courts, Fallon said.

"There's an interest always in looking at state court as an opportunity to try cases but ... I'm interested to try cases in the MDL format," he said.

Lanier, who was not at the hearing on Thursday, says he respects Fallon but wants to try his own suits, and the PSC in the federal MDL wasn't giving him that opportunity.

"My problem is I tried to play in the MDL, and the PSC wouldn't let me take depositions, wouldn't let me try cases, basically said, 'Lanier, just give us your cases, and we will tell you at the end if you make money,'" he says. "I'm being shut out by people I don't know very well."

Lanier says he personally wants to set a market settlement value for his docket of Vioxx suits. "To me litigation is not a spectator sport," he says. Lanier says his clients hired him to try their personal-injury suits against Merck.

"The interests of our clients are best served by us having a chance to set our own values. In the MDL, I'm not trial counsel or on the steering committee. They didn't hire me to defer to the plaintiffs steering committee. They want me to try their cases," Lanier says.

Only one Texas lawyer, Carlene Rhodes Lewis of Goforth Lewis Sanford in Houston, is on the PSC. Lewis did not return a telephone call seeking comment before press time.

In addition to Lanier, Turner Branch, of the Branch Law Firm in Albuquerque, N.M., also notified Fallon he has resigned as the New Mexico representative on the state liaison committee.

"I didn't feel really good about myself by continuing to stay on the [federal] Vioxx committee when I saw more state cases coming up," Branch says. "My clients want their cases moving in state courts. My first and foremost duty is to take care of them."

Barrios, a partner in New Orleans' Barrios, Kingsdorf & Casteix, says Lanier and any other lawyers who resign from the committee will be replaced.

A defense lawyer for Merck who was at the hearing, Theodore Meyer, a partner in Hughes, Hubbard & Reed in New York, says Merck supports Fallon's efforts to keep the suits in federal court.

Russ M. Herman, the lead plaintiffs lawyer in the federal MDL, says the lawyers who want to try cases in state courts will come up with less consistent results than Fallon will in the federal MDL.

"Trying a case in Texas in state court in a county may be very different than trying one in Indianapolis or Peoria or San Diego or state court in Baton Rouge, La. I'm not discounting what various lawyers are able to do. I think you are going to get mixed results," says Herman, a partner in Herman, Herman, Katz & Cotlar in New Orleans.

Herman says he's not sure how many trials will be necessary to set a market rate for Vioxx suits. But he notes that Fallon intends to preside over four or five Vioxx trials between January and August 2006.

There are more Vioxx suits in state court than in federal court. Kent Jarrell, a spokesman for the defense team, says more than 6,400 suits have been filed as of Sept. 30, with more than 3,500 in various state courts.

Merck voluntarily withdrew Vioxx from the market in September 2004 after a study indicated an increased risk of strokes and heart attacks among people who took the drug continuously for longer than 18 months.

Some of the lawyers in the breakaway group who want to try Vioxx suits in state court, such as New Jersey plaintiffs lawyer Christopher Placitella, don't have any clients in the federal MDL. Placitalla, a partner in Cohen, Placitella & Roth, says he's most comfortable trying his suits in state court in New Jersey.

The first trial in the federal MDL is set for Nov. 29. The trial will take place in Houston instead of in New Orleans, because Fallon has been working in Houston since Hurricane Katrina forced the Eastern District of Louisiana judges out of the courthouse in New Orleans.

In that suit, Evelyn Irvin Plunkett, et al. v. Merck & Co. Inc., the family of a Florida man who died in 2001 alleges he suffered a fatal heart attack because he had been taking Vioxx. The plaintiffs include the widow of Richard "Dicky" Irvin Jr., and two of his children.

In Plunkett, the plaintiffs allege negligence, strict liability defective design, strict liability failure to warn, breach of express warranty, breach of implied warranty, fraudulent misrepresentation and fraudulent concealment causes of action against Merck.

Merck alleges in a motion to exclude evidence of the plaintiff's causation experts that Irvin's death was not caused by the Vioxx he took for 24 days.

READY FOR TRIAL

Lanier says he has a Vioxx suit set for trial in April 2006 in Hidalgo County, Texas, and several others are close behind. In Texas, Tommy Fibich, the Houston plaintiffs lawyer who heads the plaintiffs steering committee in a Texas Vioxx MDL -- a statewide state court MDL for pretrial matters that is separate from the federal court MDL -- says he expects 157th District Judge Randy Wilson of Houston, the MDL judge, to set trials for May and June 2006.

Fibich says suits on behalf of about 600 to 700 plaintiffs are in In Re: Texas State Vioxx Litigation.

According to Fibich, Merck agreed to allow pretrial matters for Vioxx suits filed in state courts in Harris, Dallas, Bexar and Tarrant counties to be handled through the Texas MDL in Wilson's court and promised not to remove those suits to the federal MDL.

Richard Josephson, a partner in Baker Botts in Houston who represents Merck in the Texas MDL, was in trial on Thursday and did not return a telephone call before press time.

Fibich says that by the time the Texas MDL got up and running in Wilson's court in September, Lanier had already won his $253.5 million verdict in 23rd District Judge Ben Hardin's court in Angleton and had completed a lot of Vioxx discovery.

He says the plaintiffs lawyers with suits in the Texas MDL are ready for trial and would prefer to try their suits in state court than be subject to a class-type settlement in the federal MDL.

"Those of us who feel we do better in trials would prefer to have a schedule of trials than be tied into a settlement," says Fibich, a partner in Fibich, Hampton & Leebron in Houston.

Fibich says it's good for plaintiffs that lawyers such as Lanier want to try their Vioxx suits in state court.

"All mass torts go through Texas: breast implants, fen-phen and now Vioxx. Mass tort resolution is going to go through Texas. There is no other group of lawyers anywhere able to do what the lawyers in Texas have done, and every other state looks to us. Mark has led off with a grand slam home run," Fibich says.

In Carol A. Ernst, et al. v. Merck & Co. Inc., the jury in Angleton returned a verdict against Merck that included $229 million in punitive damages. The family of Bob Ernst, a 59-year-old Wal-Mart produce manager, sued Merck, alleging the Vioxx he took caused Ernst's death in 2001. The jury found negligence on Merck's part was a proximate cause in Ernst's death and also found a marketing defect in Vioxx and a design defect in the painkiller were producing causes in Ernst's death.

But Meyer, a lawyer for Merck, discounts the value of the verdict in Ernst. Judge Hardin has not signed a judgment in the suit.

The Angleton verdict "doesn't really give us an idea of" the market value of a Vioxx suit, he says. "It's going to be resolved in the appellate courts."

The second Vioxx trial, now before Judge Carol Higbee of Atlantic City, N.J., was continuing as of press time. The federal trial before Fallon is in line to be the third trial.

Lanier says he expects to work on some Vioxx suits in Merck's home state of New Jersey, and his firm is opening an office in New York City in November to support that effort.

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