NEW ORLEANS – A federal judge told dozens of lawyers crowded into a courtroom here Monday that there could ultimately be up to 100,000 cases filed against Merck & Co. (MRK) over its now withdrawn pain reliever Vioxx (search), and that he could hear a case as early as the fall.
There have been over 2,000 cases filed against the drugmaker so far. The pretrial issues for federal cases are being handled by U.S. District Court Judge Eldon Fallon, and lawyers from both sides met here for a monthly status conference.
Analysts have estimated that Merck's potential liability could reach $18 billion. Merck withdrew Vioxx from the market last September after a study showed it doubled patients' risk of heart attacks and stroke in people taking the drug longer than 18 months.
The plaintiff's attorneys are squabbling with Merck over records of thousands of company employees engaged in marketing the drug. Plaintiff lawyers want details on Merck employees who marketed the drug. A lawyer for Merck told the court Monday it would be "tremendously burdensome" to provide the information; the lead plaintiffs' lawyer, Russell Herman, countered afterward that Merck's sales representatives were "told to dodge" potentially awkward questions. Plaintiffs cite an internal Merck document with instructions to the representatives, referred to as "Dodge Ball Vioxx" in a court filing.
"All we want to do is spread some disinfectant," said Herman. The lead Merck lawyer, Phillip Wittmann, suggested it would be more reasonable to look at Merck employees on a case-by-case basis.
Meanwhile, the plaintiffs are also trying to extract information from the Food and Drug Administration (search), which regulated the drug and has been blamed for lax oversight. Plaintiff lawyers have complained the FDA has not been forthcoming with requested information. Meeting between lawyers for both sides and FDA officials are slated for this week, with additional meetings scheduled for next month.
Fallon told the lawyers Monday he wants the cases to move along, and suggested that trials in his court might be held by next fall. The drug company has vowed to defend every one, and has set aside hundreds of millions to defend itself.
Still, the first cases are set to be heard in state courts — Texas in July, and New Jersey in August. The delicate process of coordinating the federal suits with the state cases was underscored Monday by the presence in the courtroom of state court judges from those two states as well as Alabama, where one case already has been postponed.
"We intend to try to cooperate as much as possible," New Jersey judge Carol Higbee told Fallon on Monday, adding that there would be no "friction" between the various jurisdictions.
Merck shares rose 26 cents to $32.88 on the New York Stock Exchange (search). They have traded in a range of $25.60 and $48.78 over the past two weeks.