Federal Panel Consolidates Vioxx Suits

By BARNABY J. FEDER

Published: February 17, 2005

Correction Appended

Hundreds of individual and class-action lawsuits filed in federal courts against Merck, blaming its painkiller Vioxx for deaths and injuries, will be consolidated in a federal court in New Orleans before a judge that many plaintiffs' lawyers had hoped would receive the case.

The consolidation order that funneled the cases to Judge Eldon E. Fallon, 66, was issued yesterday by a seven-member administrative body of federal judges that rules on motions to centralize nationwide legal battles.

Lawyers for plaintiffs and the company presented their arguments late last month to the seven-judge panel, with both sides agreeing that the growing number of cases made consolidation desirable. Merck had asked that the cases be consolidated in a federal court in Illinois, Indiana or Maryland, but the court in Louisiana emerged as a favorite among the plaintiffs' lawyers.

In its order yesterday, the administrative panel said it was assigning the cases to Judge Fallon because he had the time and experience to handle the Vioxx litigation. He is overseeing a proposed settlement reached in his court last year for all federal injury claims related to Propulsid, a heartburn drug made by a Johnson & Johnson subsidiary.

Propulsid was linked to reports of 80 deaths and hundreds of heart attacks before it was withdrawn from the market in 2000. The Janssen Pharmaceutica unit of Johnson & Johnson has agreed to pay up to $90 million, if enough claimants and potential claimants agree to participate so that the settlement takes effect.

The Vioxx litigation is expected to dwarf the Propulsid cases. Vioxx has been shown to increase risks of heart attack and strokes. It has been blamed for tens of thousands of deaths and an even larger number of nonfatal but nonetheless damaging heart problems. Analysts estimate that Merck's total liabilities in federal and state cases could run as high as $30 billion. The company so far has set aside $675 million in reserves to cover its potential Vioxx liabilities.

Judge Fallon is frequently rated as leaning slightly toward plaintiffs in anonymous evaluations submitted by lawyers who practice in federal courts, according to the Almanac of the Federal Judiciary, an online guide to judges compiled by Aspen Publishers. But the almanac evaluations also characterize him as "extremely fair" and "evenhanded."

Merck, based in Whitehouse Station, N.J., issued a statement yesterday that reiterated its intention to "defend itself vigorously" but avoided any comment on its view of Judge Fallon.

Plaintiffs' lawyers were more effusive. "Both sides got lucky," said Christopher A. Seeger, a lawyer in New York who has taken a lead role in the Vioxx suits and who has appeared before Judge Fallon in the Propulsid cases. "He's going to be right-down-the-middle fair and he is going to move the case."

Judge Fallon, who was nominated for the federal court by President Clinton in 1995 after a long career as a trial lawyer in which he usually represented plaintiffs, has a reputation for being a stickler for deadlines and for moving large cases along rapidly.

It might take as long as two months for all of the Vioxx case files around the country to be transferred to New Orleans. But plaintiffs' lawyers said yesterday that they expected Judge Fallon to call his first meeting of the parties within a few weeks.

The judge's first tasks include naming a committee to represent the plaintiffs. A group of lawyers who began working together last fall said yesterday that they plan to ask Judge Fallon to choose co-leaders of the committee: Mr. Seeger and Andy D. Birchfield Jr., a lawyer based in Birmingham, Ala., who has participated in a number of major drug cases and was among the first to file Vioxx claims in 2001, long before Merck took the drug off the market last September.

Merck voluntarily withdrew the drug, which was its fourth best-selling product, last fall after receiving new clinical data that the company said was the first clear evidence Vioxx posed such dangers. But Merck's critics have argued that the company knew - or should have known - about Vioxx's shortcomings years earlier.