Vioxx roundup, January 15-17

by Ted Frank on January 17, 2008

(Re-posted from Point of Law.)

  • Two cases are currently scheduled for trial in state court in the first five months of 2008—one less than was scheduled for trial a week ago.
  • Ronda Smith v. Merck, a wrongful-death case, is scheduled for trial in Mingo County Circuit Court in West Virginia May 19. But since Mark Lanier of the Plaintiffs Steering Committee (PSC) is Smith’s counsel, and since this trial has already been postponed once, one expects it will be postponed again (and likely settled) unless something unexpected happens to the settlement between now and then.
  • Dick Donohoo v. Merck is scheduled for April 17 in Madison County, Illinois. Donohoo originally sued his pharmacist, Walgreen’s, an Illinois corporation, as a co-defendant, which defeated complete diversity, and kept the case in state court, though it is unclear if the plaintiffs have any intention of seeking damages against the pharmacist. (Doing so would require a theory of liability inconsistent with the theory of Merck’s liability.) To date, every plaintiff who has tried a case in state court has dismissed fraudulently joined co-defendants before trial. An earlier Madison County case, Schwaller v. Merck, went in Merck’s favor, but this would be the first case involving St. Louis attorney Jeffrey Lowe. Lowe is also the attorney with a thousand or so cases who filed a motion to declare the settlement unenforceable on January 3; that was originally scheduled to be heard tomorrow, but has been continued to a date to be determined by the parties. The Donohoo case was originally scheduled for late October, so the fact that it was postponed suggests some awareness by Lowe of the settlement negotiations.
  • By process of elimination (and without surprise) then, the Frederick v. Merck case in Alabama scheduled for March has been postponed.
  • A motion is pending to release to other plaintiffs’ attorneys the “Trial in a Box” or “trial package” (April 2006) which was compiled and provided to Judge Fallon in camera October 3, on the grounds that it is needed to fairly evaluate the settlement. The PSC claims in its opposition to the motion that cryptographic “security measures” to protect work-product privilege are needed before it can be released to cooperating counsel, which seems implausible; the PSC also argues that one can evaluate the settlement by simply looking at the settlement, which seems to miss the point, since the value of a claim is directly related to the strength of the evidence supporting the claim. More compelling is the PSC’s argument that attorney Michael Stratton’s two-page motion is procedurally defective under the local rules. The PSC did not make what is perhaps their strongest argument: there is nothing in the “trial package” that isn’t already available to plaintiffs’ counsel at the document depository (the “package” can only organize evidence, not create new evidence that doesn’t already exist), and it is almost certainly the case that there is nothing in the “trial package” that hasn’t already been used at the first eighteen trials, since the attorneys who tried those cases are, for the most part, the same attorneys who generated the “package.” This appears to be a sloppily-litigated tempest in a teapot for both sides of the intra-plaintiff-bar dispute; as best I can tell, Merck didn’t even bother to file an opposition.
  • Press coverage continues to be sloppy. AP continues to mistakenly report that the 55,000-plus plaintiffs who registered by January 15 had “signed up” for the settlement. (Reuters gets the distinction between registration and opting in, which is done at a later date, correct. Many others don’t.) [Settlement Exhibit 1.1; NJ Star-Ledger; DowJones; AP/Newsday; Bloomberg.] And a Forbes reporter, Camilla Webster, makes the striking claim that Merck stock declined this week because of the January 15 registration deadline; perhaps she thinks that traders did not account for this deadline when it was announced on November 9, did not have the ability to look at a calendar, and were surprised when January 15 showed up only two months later. I suppose it’s too much to ask a markets reporter to have a Cliffs-Notes-level of familiarity with Burton Malkiel.
  • Another objection, filed as a declaratory judgment action by Connecticut law firm Stratton Faxon, which had about 85 plaintiffs, was rejected in federal court in Connecticut for lack of jurisdiction on the grounds that the law firm was seeking an advisory opinion. [Lexis-Nexis]
  • Ronald Benjamin, an attorney for five plaintiffs has filed a legally incoherent interlocutory appeal with the Fifth Circuit against an administrative discovery order (Pre-Trial Order No. 28) issued by Judge Fallon. The appeal is based on the faulty premise that a discovery order is a final judgment because the definitions (which are delineated as “For purposes of this order only”) will be binding on future litigants in future substantive motions. And even if one were to accept the legally illiterate premise, the motion’s logic is incomplete. If one assumes that Judge Fallon, by applying definitions in a discovery order, has made binding findings of fact, those findings of fact are still interlocutory, since the court has not yet dismissed any case by misapplying the definitions. Benjamin’s other faulty premise is that the settlement is subject to Rule 23; but since there is no plaintiff class, there are no Rule 23 compliance requirements. Thus, the appeal will almost certainly be dismissed for lack of appellate jurisdiction, as both Merck and the PSC have requested. (Agard v. Merck, No. 07-31164.) There seem to be a handful of other appeals pending in the Fifth Circuit that were filed in the waning days of 2007.
  • Merck’s vocal confidence about the settlement standing up is backed up by action: They’ve taken down their “LearnAboutVioxx” website, which was a very useful resource for pending litigation. They still have a press room at the Merck.com site.

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