arthritis drugs
Transcription
arthritis drugs
LitigationWatch: ARTHRITIS DRUGS SEPTEMBER 2005 TRACKING EMERGING LITIGATION INVOLVING DRUGS USED TO TREAT ARTHRITIS 7 9 12 15 16 17 VIOXX VIOXX VIOXX CELEBREX BEXTRA REMICADE Merck Moves to Exclude Causation Testimony in New Jersey Vioxx Case Multidistrict Panel Grants Motion to Create State Vioxx MDL Federal Judge Refuses to Remand, Then Refuses to Stay Vioxx Action Northern District of California to Get Celebrex, Bextra MDL Pfizer Wants Michigan Law Applied to Pennsylvania Bextra Case Defendants Designate Experts in Remicade Wrongful Death Case After $253.4 Million Verdict, Merck Says It May Settle Some Suits WHITEHOUSE STATION, N.J. — Just days after saying it would continue to fight each Vioxx personal injury claim despite being hit with a more than $250 million verdict, the drug’s manufacturer said it may consider settling some of the most serious cases. According to a company spokesman, Merck will consider settling suits brought by people who took Vioxx for at least 18 months and who had few other risk factors for heart disease. The Aug. 25 announcement came just days after Merck said it would not be settling any of the claims, despite a state court jury’s decision to award $253.4 million to the widow of a Texas man who died after taking Vioxx for about two months. Merck said it would be appealing the verdict on numerous grounds. Based on the facts presented in that case — the first in the nation to go to trial — there would not have been a settlement offer from Merck if it applied the recently announced requirements for considering resolution of Vioxx claims. Meanwhile, Merck is gearing up to try a case in New Jersey state court, where trial will begin Sept. 12 in Humeston v. Merck Inc. The plaintiff, Frederick "Mike" Humeston alleges that he suffered a nonfatal heart attack after taking Vioxx intermittently for two months. Merck contends that Humeston suffered a myocardial infarction as a result of several risk factors for heart disease, including high cholesterol, anxiety and obesity. www.harrismartin.com After Humeston, trial is slated to get underway in another state court pulmonary embolism case in Texas. And, on Nov. 28, the first federal case is scheduled for trial in the U.S. District Court for the Eastern District of Louisiana, where the Vioxx MDL is overseen by Judge Eldon E. Fallon. However, there is speculation that trial may be postponed due to the effects of Hurricane Katrina, which forced staff in the Eastern District of Louisiana to move operations to Houston. For more information about the recent Vioxx verdict and upcoming trials, please see Courtroom News on Page 7 and the Interview with plaintiff ’s trial counsel, Mark Lanier, on Page 4. HARRISMARTIN’S LITIGATION WATCH: ARTHRITIS DRUGS – SEPTEMBER 2005 Table of Contents ON THE COVER After 253.4 Million Verdict, Merck Says It May Settle Some Suits 1 INTERVIEW Mark Lanier, Lead Plaintiff’s Trial Counsel in Ernst, Discusses the Verdict and Its Impact 4 RESEARCH WATCH Summaries of Recent Arthritis Drugs-Related Studies Published in the Medical Literature 6 COURTROOM NEWS Jury Awards $253.4 Million to Plaintiff in First-Ever Vioxx Trial 7 Ernst v. Merck & Co. Inc., et al., No. 19961*BH02 (Texas Dist. Ct., Brazoria Cty.). Merck Moves to Exclude Causation Testimony in New Jersey Vioxx Case 7 Humeston v. Merck & Co. Inc., No. ATL-L-2272-03 (N.J. Super. Ct., Atlantic Cty.). Merck Moves to Exclude Business Ethicist’s Testimony in Vioxx Suit 8 Humeston v. Merck & Co. Inc., No. ATL-L-2272-03 (N.J. Super. Ct., Atlantic Cty.). Merck Wants Opinions of ‘Expert with a Cause’ Excluded Entirely from Vioxx Trial 8 Humeston v. Merck & Co. Inc., No. ATL-L-2272-03 (N.J. Super. Ct., Atlantic Cty.). Multidistrict Panel Grants Motion to Create State Vioxx MDL 9 In Re: Vioxx Litigation, No. 05-0436 (Texas Sup. Ct.). Merck Opposes Plaintiffs’ Motion for Protective Order Related to Employee Depos 10 In re: Vioxx Products Liability Litigation, MDL Docket No. 1657 (E.D. La.). Committees Identify Stroke Case for Early Trial; No Date Set 10 Hofmann v. Merck & Co. Inc., et al., No. 05-4103 (E.D. Pa.). Federal Judge Says Texas Vioxx Medicaid Lawsuit Belongs in State Court 11 The State of Texas v. Merck & Co. Inc., No. 05-606 (W.D. Texas). Federal Judge Refuses to Remand,Then Refuses to Stay Vioxx Action 12 Waitt v. Merck & Co. Inc., et al., No. 05-0759 (W.D. Wash.). Judge Says Distributor May be Held Liable in Vioxx Injury Case 12 Martin v. Merck & Co. Inc., No. 05-750 (E.D. Calif.). Plaintiffs’ Case Against Merck Remanded After Judge Severs Vioxx Claim 13 Edsall v. Merck & Co. Inc., No. 05-2244 (N.D. Calif.). Judge Rejects Merck’s Fraudulent Joinder, Improper Misjoinder Arguments 14 Anderson v. Merck & Co. Inc., No. 05-4036 (C.D. Calif.). Northern District of California to Get Celebrex, Bextra MDL 15 In re Bextra and Celebrex Marketing, Sales Practices and Products Liability Litigation, Docket No. 1699 (JPML). Pfizer to California Court: Celebrex is No Vioxx 15 Anderson v. Merck & Co. Inc., et al., No. BC331454 (Calif. Super. Ct., Los Angeles Cty.). Pfizer Wants Michigan Law Applied to Pennsylvania Bextra Case 16 Henderson v. Merck & Co. Inc., et al., No. 04-5987 (E.D. Pa.). Defendants Designate Experts in Remicade Wrongful Death Case 17 Huff v. Centocor Inc., et al., No. 04-1279 (D. S.C.). Iowa Plaintiff Blames Remicade for Brain Damage 17 Jennifer Rae Zach, et al. v. Centocor Inc., et al., No. LACV066002 (Iowa Dist. Ct., Johnson Cty.). Georgia Plaintiff Alleges Enbrel Caused Development of Multiple Sclerosis 18 Baggett v. Amgen Inc., et al., No. 4-05-cv-82 (M.D. Ga., Columbus Div.). LITIGATION WATCH: ARTHRITIS DRUGS 3 ALL DOCUMENTS AVAILABLE FREE TO SUBSCRIBERS AT WWW.HARRISMARTIN.COM A HarrisMartin Interview with W. Mark Lanier Lead plaintiffs’ counsel in Ernst discusses the trial And life after the landmark verdict On Aug. 19, a jury awarded $253.4 million to the widow of Robert Ernst, a Texas man who died after taking the now withdrawn arthritis drug, Vioxx. Ernst’s case was the first to proceed to trial since plaintiffs around the country began filing cases against Merck nearly three years ago. W. Mark Lanier, Esq. Lead plaintiff ’s trial counsel was W. Mark Lanier, a Houston attorney who until then was best known for several high-profile asbestos verdicts. Lanier is the founder of The Lanier Law Firm and is widely recognized as one of the top trial lawyers in the country. Lanier spoke with HarrisMartin Publishing recently about the landmark verdict and the potential impact on the future of Vioxx litigation. HarrisMartin: Were you at all surprised by either the outcome of this case or the total damages awarded? Lanier: Let’s just say I was cautiously optimistic. Our jury paid great attention to the trial, and I am a believer in the jury system. I had confidence they would do what was right. Three years ago, when the first Vioxx cases were being filed, would you have ever imagined that one day a jury would return a verdict of $253 million in favor of one of your clients? Nope. I had no idea how damaging the documents were for Merck. I had no idea how much Merck knew compared to what Merck was telling people. There is a report now that Merck will consider settling some cases if they involve plaintiffs who took Vioxx 4 LITIGATION WATCH: ARTHRITIS DRUGS longer than 18 months and who have no pre-existing cardiovascular conditions. But, if that’s true, a case like Ernst wouldn’t be one of the ones settled, correct? Why do you think they changed their opinion then about settling cases where before they stated emphatically they would fight each one? Ernst will not be settled under the new “proposal.” Merck needs to get responsible and address all cases of Vioxx damage, not merely those with 18 month exposure. Clearly the verdict changed the settlement posture somewhat. Where would this case have been without Merck’s decision to withdraw Vioxx? In other words, what impact did that decision have on the movement of the case and the verdict? Withdrawing the drug might have helped Merck as much as it hurt Merck. Merck was allowed to argue that it took a responsible course of action the moment it had concern over the drug’s adverse effects. We were allowed to argue that the drug must be dangerous or Merck would have continued sales. Merck has indicated it will appeal the verdict on grounds that Dr. Araneta should have been precluded from testifying. What is it that made her testimony so important, and without her live testimony, might this case have turned out differently? Dr. Araneta said nothing that other experts did not also say. While I do not believe it was error to allow her testimony — remember, Merck designated her as a witness and Merck told the jury what Dr. Araneta believed in opening HARRISMARTIN’S LITIGATION WATCH: ARTHRITIS DRUGS – SEPTEMBER 2005 statements. Any alleged error is harmless because Dr. Araneta’s testimony was cumulative of others’ testimony. Was there any one witness who you believe was the most compelling? Alan Nies, the Merck head scientist on Vioxx, and Alise Reicin, the Merck “defender of the Vioxx franchise.” Although they were both Merck witnesses, they were most compelling for us. They showed the callous disregard Merck had for science and for victims. There has been a lot of talk about this verdict in legal circles, on web blogs, on talk shows and news magazines, and I’ve heard a lot of people say this is a verdict that was more about emotion than it was about Merck and its legal duty to warn. What’s your response to that? Anyone whose says that is either a Merck spinster, or someone who knows nothing about the trial and the evidence. Merck killed thousands upon thousands of people for profit — and knew it the whole time. That would not be tolerated by most any jury anywhere. You’ve been involved in a lot of verdicts and settlements on behalf of clients. Where does this one rank? Although this is not my largest, it is probably my most satisfying. The cause is incredibly just. And we have a chance to make a difference in America and save lives. The causation issues in this trial were somewhat complex. In a nutshell, how is it that you were able to show the jury that Vioxx caused Mr. Ernst’s death when Merck had argued that he died from arrhythmia, a condition the manufacturer has stated is not caused by Vioxx? “Merck needs to get responsible and address all cases of Vioxx damage, not merely those with 18 month exposure.” I used the Merck Manual along with basic medical textbooks. They showed that you need a 90 percent blockage to have the arrhythmia Mr. Ernst died from. Mr. Ernst had a maximum 75 percent blockage with atherosclerosis. Either something so stressed Mr. Ernst in his sleep that he needed more oxygen than he could get, or there was a clot. The only stress Merck witnesses offered were bad dreams or sleep apnea. The jury went with the textbooks and the clot. What are the implications of this finding — that it’s possible an arrhythmia could be caused by ingestion of Vioxx — for the future of Vioxx litigation? You will still need a prothrombotic event (blood clot). There are many arrhythmias that are not caused by heart attacks. How significant were the jury instructions regarding causation in this case? Was it important that the jury was instructed to answer whether Vioxx was a cause, rather than the cause of Mr. Ernst’s death? And, is it likely that other jurors around the country will be instructed similarly? It is very important. The law doesn’t say that Vioxx must be the only cause. There can always be more than one proximate or producing cause. I recently read a report which stated that Merck stands a better chance at winning the upcoming trial because of where it is being held — in New Jersey. They list as the reasons: a more affluent and/or sympathetic jury; favorability regarding home-state status; and examples in the first trial from which to learn. Can you comment on why this may or may not be the case? The jury is a toss up. If lawyers on both sides do their job in voir dire, the jury is not one where bias or sympathy should play a part. I plan on trying cases in New Jersey, and I plan on winning. Merck has a benefit having been through a trial, but the plaintiff ’s team has my transcript as a road map. Tell me a little bit about what life has been like at the Lanier Law Firm since this verdict. Any different? More e-mails! We have had significant more media attention, but ultimately we just get back to work. The Guerra case, which is set for trial in Hidalgo County after Humeston in New Jersey, is also yours. Will you be trying this, and can you tell me a little about the facts surrounding this case? My plan is to try it. Guerra died of a pulmonary embolism. I look forward to kicking my game against Merck up a couple of notches. LITIGATION WATCH: ARTHRITIS DRUGS 5 ALL DOCUMENTS AVAILABLE FREE TO SUBSCRIBERS AT WWW.HARRISMARTIN.COM Journal Watch A Comparison of Reported Gastrointestinal and Thromboembolic Events Between Rofecoxib and Celecoxib Using Observational Data Journal: Drug Safety 2005;28(9):803-16 Authors: R. Kasliwal, D. Layton, S. Harris, L. Wilton, S.A. Shakir Summary: A study comparing the incidence of gastrointestinal events and thromboembolic events reported for 15,286 and 17,458 patients prescribed Vioxx or Celebrex, respectively. Incidence rates of the first event during treatment within each thromboembolic and gastrointestinal group were calculated during the 270 days after the patient started receiving either drug. The results indicated that for the GI event groups, the adjusted relative risks for Vioxx compared to Celebrex were 1.21 for symptomatic upper GI events and 1.60 for complicated conditions. For the thromboembolic event groups, the relative risks were 1.04 for cardiovascular events, 1.43 for cerebrovascular events and 0.36 for peripheral venous events. The data led researchers to conclude that for the three thromboembolic event groups, there is no evidence of a statistically significant difference between Vioxx and Celebrex when adjusting for identified risk factors. The researchers cautioned, however, that they had information on only a limited number of confounding variables for thromboembolic events. Web Site: http://www.adisonline.info/drs/default.asp Arthritis Drugs In the Medical Literature This Month Risk of Retinal Vein Occlusions in Patients Treated with Rofecoxib (Vioxx) Journal: Ophthalmologia 2005 JulAug;219(4):243-7 Authors: C.H. Meyer, J.C. Schmidt, E.B. Rodrigues, S. Mennel Summary: The report focuses on three patients each who suffered sudden decrease in vision following treatment with Vioxx. One, a 78-year-old who was taking 50mg developed sudden decrease of vision in her right eye; another 68year-old female developed a branch retinal vein occlusion with flame-shaped hemorrhages one day after taking 25mg of Vioxx; and a third 47-year-old male who took Vioxx for one week developed decreased and clouded vision and was later diagnosed with central retinal vein occlusion. The reports led the authors to suggest that under certain conditions patients with predisposed thrombosis may be at risk for both cardiovascular and ocular thrombotic events when taking COX-2 inhibitors. Web Site: n/a COX-2 Inhibitors and Arterial Hypertension: An Analysis of Spontaneous Case Reports in the Pharmacovigilance Database Journal: European Journal of Clinical Pharmacology 2005 Aug 24 [Epub] 6 LITIGATION WATCH: ARTHRITIS DRUGS Authors: G. Durrieu, P. Olivier, J.L. Montastruc Summary: This study was designed to evaluate the main characteristics of case reports of arterial hypertension related to COX-2 inhibitor use in real-life practice. The researchers identified 34 cases of arterial hypertension that occurred between April 2000 and November 2003 and were related to coxibs. Most cases of arterial hypertension occurred during the first 15 days of treatment and were more frequent among Vioxx users than Celebrex users. The researchers concluded that coxibs are associated with a risk of arterial hypertension in real-life practice and that the adverse drug reactions that formed the basis for the study are of special epidemiological importance due to the risks of arterial hypertension and the widespread use of coxibs. Web Site: www.springerlink.com/link.asp?id=100413 HARRISMARTIN’S LITIGATION WATCH: ARTHRITIS DRUGS – SEPTEMBER 2005 Vioxx Texas Jury Awards $253.4 Million to Plaintiff in FirstEver Vioxx Trial ANGLETON, Texas — The family of a Texas man who suffered a fatal heart attack after taking Vioxx has been awarded $253.4 million in the first-ever trial involving the withdrawn arthritis drug. Ernst v. Merck & Co. Inc., et al., No. 19961*BH02 (Texas Dist. Ct., Brazoria Cty.). The Aug. 19 verdict reached by the Brazoria County 23rd District Court jury included $229 million in punitive damages, sources said. The five-week trial was overseen by Judge Ben Hardin. Plaintiff Carol Ernst claimed that her husband Robert died in 2001 as a result of taking Vioxx for eight months. Merck argued during trial that Ernst suffered an arrhythmia that ultimately caused his death and that his heart condition was most likely resulted from clogged arteries, not Vioxx. The manufacturer maintained that there exist no studies linking Vioxx ingestion and arrhythmia. Testifying for the plaintiffs were Dr. David Egilman, warnings and causation, Brown University, Providence, R.I.; Dr. Isaac Wiener, cardiology; Dr. Benedict Lucchesi, cardiology and pharmacology, University of Michigan; and Dr. Kenneth McCoin, economist, Houston. Merck called Dr. Thomas Wheeler, pathology, Louisville, Ky.; Dr. Craig Pratt, cardiology, Houston; and Dr. Maria Araneta, coroner. Counsel for Merck were David C. Kiernan of Williams & Connolly in Washington, D.C.; Gerry Lowry of Fulbright & Jaworski in Houston; and Joe Piorkowski Jr. of Joseph D.. Piorkowski Jr. in Washington, D.C. Ernst was represented by W. Mark Lanier, Kenneth S. Soh, Dara G. Hegar, Richard D. Meadow, Philip Sonar and Maura Kolb of the Lanier Law Firm in Houston; Benedict Morelli of Morelli Ratner in New York; Lisa Blue of Baron & Budd in Dallas; and Randy Moore of the Moore Law Firm in Lake Jackson, Texas. Vioxx Merck Moves to Exclude Causation Testimony in New Jersey Vioxx Case ATLANTIC CITY, N.J. — Merck & Co. has moved to exclude evidence offered by experts testifying on behalf of a plaintiff in New Jersey, arguing that the causation testimony isn’t sound and that the plaintiff had a history of poor health that led to the heart attack he now blames on Vioxx. Humeston v. Merck & Co. Inc., No. ATL-L-2272-03 (N.J. Super. Ct., Atlantic Cty.). Merck filed the motion Aug. 8 in the Atlantic County Superior Court, where Merck and plaintiff William Humeston are preparing for a trial expected to begin next month. Humeston and several experts hired to testify on his behalf contend that the plaintiff suffered a nonfatal heart attack caused by his ingestion of the withdrawn arthritis drug. Humeston, a 60-year-old Vietnam Veteran who suffered a wartime shrapnel injury to his knee, claims he took Vioxx regularly, then intermittently, for two months before suffering a heart attack on Sept. 18, 2001. Merck says, however, that Humeston’s contention that Vioxx caused his heart attack overlooks the fact that he suffered from a number of ailments, any one or combination of which could have caused his injury. According to the defendant, Humeston suffered from anxiety, high cholesterol and was clinically obese — all risk factors for myocardial infarctions such as the one he suffered. “Most infarctions occur in persons with at least one risk factor, and any one or all of the factors present in Mr. Humeston’s case are sufficient to cause heart disease or heart attacks,” Merck argues. “Thus, Mr. Humeston’s use of Vioxx must be considered against this backdrop of significant preexisting medical conditions — conditions which caused him to be at a higher risk of MI than the general population.” Merck says Humeston’s experts have opined that his minimal and intermittent use of Vioxx was the “but for” cause of the plaintiff ’s thrombus and resulting heart attack. But, they argue that those same experts cannot specifically state within the required degree of medical or scientific probability that Humeston’s heart attack was caused by Vioxx. “Although plaintiffs’ experts purport to rule out Mr. Humeston’s risk factors, they do not and cannot answer how and why they did so — and certainly not to the requisite degree of medical probability required under New Jersey law. Merck says that the plaintiffs have also failed to identify a reliable scientific methodology for determining that Humeston’s heart attack was caused by Vioxx, as opposed to his multiple preexisting conditions. “Because even their own experts have to accept the basic science of how a heart attack happens and how it happened in LITIGATION WATCH: ARTHRITIS DRUGS 7 ALL DOCUMENTS AVAILABLE FREE TO SUBSCRIBERS AT WWW.HARRISMARTIN.COM Mr. Humeston, they are left with little more than guilt by temporal association — that is, he had it while on Vioxx so Vioxx must have caused it,” Merck says. “This is not the kind of rigorous and well-supported scientific reasoning demanded by New Jersey law.” Merck is represented by Diane P. Sullivan of Dechert in Princeton, N.J., and Wilfred P. Coronato of Hughes, Hubbard & Reed in Jersey City, N.J. Document Is Included See Page 19 or Call (800) 496-4319 Motion Ref# ART-0509-01 Vioxx Merck Moves to Exclude Business Ethicist’s Testimony In Vioxx Suit ATLANTIC CITY, N.J. — A business ethics professor whose opinion about Merck’s conduct in the years leading up to its decision to pull Vioxx from the market should not be heard by jurors in the nation’s second Vioxx trial, attorneys for the company argue in a brief filed recently. Humeston v. Merck & Co. Inc., No. ATL-L-2272-03 (N.J. Super. Ct., Atlantic Cty.). Merck says in its Aug. 8 brief that the opinion of Professor W. Michael Hoffman Ph.D. regarding Merck’s business ethics is “not even conceivably relevant” to the case in which he has been designated to testify and that the Atlantic County Superior Court jury slated to hear the trial should not be permitted to weigh the testimony because it fails to meet admissibility standards. “Professor Hoffman’s opinions as to Merck’s supposed business ethics have no 8 bearing on any element of plaintiffs’ claims and therefore do not tend to prove or disprove any fact that is of consequence to the determination of plaintiffs’ action,” Merck alleges. Hoffman’s expert report indicates that he will testify as to whether Merck’s actions with respect to Vioxx were ethical. Specifically, he has indicated that based on the application of the principles of business ethics, Merck “willfully placed profits over patients, putting thousands of lives at risk, thereby violating its own stated values and acting unethically.” Merck, however, argues that the relevant issue is not whether the manufacturer lived up to Hoffman’s concept of an ethical corporation, but whether the company met its legal obligations to plaintiffs. The brief also notes that Hoffman himself has conceded that his opinions about Merck’s communications with doctors and its customers does not extend beyond ethical obligations. “Professor Hoffman does not contend that a company living up to its supposed ‘ethical’ duties necessarily complies with the law,” Merck argues, adding that for this reason, Hoffman’s testimony has been excluded by courts on four separate occasions. “This disconnect between ethics and the law renders Professor Hoffman’s opinions about the former categorically irrelevant as to the latter.” Merck also contends that Hoffman’s opinions are not based on methodologies that would survive any reliability test under New Jersey law. Instead, Hoffman acquired his knowledge of Merck’s corporate state of mind from reading newspaper articles and documents posted on the FDA web site, according to the brief. Those same documents can be examined and readily understood by the jury, which would then be able to reach its own conclusion about what Merck knew and intended regarding risks allegedly associated with Vioxx, the brief says. LITIGATION WATCH: ARTHRITIS DRUGS In addition to arguing that Hoffman should be precluded from testifying that Merck’s conduct regarding Vioxx was unethical, the drug maker says that any testimony regarding the alleged inadequacy of Merck’s warning label should also be excluded. “Although disclaiming any expertise in medicine, epidemiology, the development or marketing of prescription drugs, the prescription drug industry, or the design of warnings for drug products, Professor Hoffman opines that Merck was ethically deficient in issuing warnings regarding Vioxx’s cardiovascular effects after the VIGOR study, and in particular, Professor Hoffman opines that Merck should have listed ‘the issues with regard to VIGOR … in the warning part of the label, and not in the precautions part of the label,’” Merck asserts. “Any such testimony regarding Merck’s duties with respect to product labeling and warnings should be excluded.” Merck is represented by Diane P. Sullivan of Dechert in Princeton, N.J.; and Wilfred P. Coronato of Hughes Hubbard & Reed in Jersey City, N.J. Document Is Available Search www.harrismartin.com or Call (800) 496-4319 Motion Ref# ART-0509-06 Vioxx Merck Wants Opinions of ‘Expert with a Cause’ Excluded Entirely from Trial ATLANTIC CITY, N.J. — Merck has moved to exclude all testimony expected to be presented by plaintiff ’s expert Dr. David Egilman in a Vioxx case slated to go to trial in New Jersey on Sept. 12. HARRISMARTIN’S LITIGATION WATCH: ARTHRITIS DRUGS – SEPTEMBER 2005 Humeston v. Merck & Co. Inc., No. ATLL-2272-03 (N.J. Super. Ct., Atlantic Cty.). In a motion filed Aug. 8 in Atlantic County Superior Court, Merck accuses plaintiff Frederick Humeston of proffering Dr. Egilman as a one-stop shop for expert testimony, including opinions regarding Merck’s legal duty to patients who took Vioxx and the suppression of certain research data showing that the drug caused an increased risk of cardiovascular side effects. However, the defendant claims that Egilman’s testimony is inadmissible under the New Jersey Rules of Evidence. Merck says that Egilman’s opinions in the instant case are consistent with prior statements he has made in other cases that collectively demonstrate he has become much more an advocate for a cause than an expert prepared to testify on matters derived from careful, accepted, peer-reviewed methodological analysis. “Overall, Dr. Egilman’s testimony and report is not the product of reliable, objective scientific analysis designed to aid the trier of fact, but a hostile partisan attack designed to further Dr. Egilman’s personal agenda,” the motion says. “Collectively, Dr. Egilman’s intemperate statements in both public and litigation settings, his history of campaigns against ‘corporate misdeeds,’ and his comportment in prior litigation combine to render Dr. Egilman unfit to ‘assist the trier of fact’ as required by Rule 702.” According to Merck, plaintiffs have indicated that Egilman will testify on behalf of Humeston, who alleges he suffered a heart attack as a result of ingesting Vioxx. Merck says that the expert is expected to testify that Merck breached its ethical or legal obligation concerning Vioxx in that the manufacturer failed to adequately warn the public about dangers it knew were associated with the arthritis drug. Merck contends, however, that jurors shouldn’t be allowed to hear such “personal and subjective” testimony, especially from Egilman, who it says is not qualified in the areas of labeling, marketing or testing of prescription drugs. Similarly, Egilman has not provided any research or methodology establishing that his opinions are reliable, or that they are relevant, Merck says, noting that Humeston has already testified that he never saw any advertising for Vioxx and had never heard of the drug before it was prescribed to him by his physician. Merck further argues that expert testimony regarding the defendant’s alleged violation of legal standards concerning its duty to warn consumers is inadmissible because it is the court’s responsibility to instruct jurors on the requirements of the relevant law. And, it is the jurors who then must apply that law to the facts and evidence before it, Merck adds. Similarly, the motion says Egilman’s frequent remarks indicating that Merck has failed to comply with certain discovery obligations by withholding from plaintiffs’ counsel and the FDA certain information regarding its evaluation of Vioxx usurps the roles of lawyer as advocate and the court as arbiter in this case. Therefore, his opinions regarding Merck’s alleged refusal to produce certain documents related to the testing and marketing of Vioxx are inadmissible, the motion asserts. “Dr. Egilman is not a lawyer, he is not counsel for plaintiffs, and he certainly is not the judge in this case,” Merck argues. “He therefore lacks the ‘knowledge, skill, expertise, training, or education’ to tell the jury whether Merck has complied with its discovery obligation. And even if he were so qualified, discovery is not the province of an expert witness.” Finally, the manufacturer urges the court to preclude Egilman from testifying generally about corporate conduct and malfeasance, issues that Merck says the witness has taken up in furtherance of a “hostile partisan attack designed to further” his own agenda. “Given his open and manifest ideological bias, Dr. Egilman should be disqualified from testifying altogether,” the motion says. Merck is represented by Diane P. Sullivan of Dechert in Princeton, N.J., and Wilfred P. Coronato of Hughes Hubbard & Reed in Jersey City, N.J. Document Is Available Search www.harrismartin.com or Call (800) 496-4319 Motion Ref# ART-0509-05 Vioxx Multidistrict Panel Grants Motion to Create Texas State Vioxx MDL AUSTIN, Texas — A Multidistrict Litigation Panel in Texas has granted a motion by Merck & Co. to transfer approximately 50 Vioxx cases to a single, state court district judge. In Re: Vioxx Litigation, No. 05-0436 (Texas Sup. Ct.). The Supreme Court’s MDL panel granted the motion Aug. 25, more than two months after the drug manufacturer filed a Rule 13 motion to consolidate and transfer the claims. In its petition, Merck argued that the cases all shared common issues of fact related to the company’s development, state of knowledge, and pre-and postapproval testing of Vioxx. The June 6 petition also noted that nearly all of the parties involved in the cases had informally endorsed the proposal to create a state court MDL for Texas Vioxx cases. LITIGATION WATCH: ARTHRITIS DRUGS 9 ALL DOCUMENTS AVAILABLE FREE TO SUBSCRIBERS AT WWW.HARRISMARTIN.COM Merck’s motion also suggested that the parties were in agreement that the cases should be transferred to the Harris County District Court and that they be assigned to Judge Randy Wilson of the 157th District Court or Judge Tracy Christopher of the 295th District Court. The Multidistrict Litigation Panel stated in its order that it would issue a second finding at a later date naming the judge to whom the cases will be transferred. In the event that a pretrial judge or litigant concludes that additional judges are needed in the future, the panel will entertain requests to transfer cases to additional judges, the order says. The order also notes that if the cases that are ready for trial are not remanded to the trial court, the panel will consider complaints from litigation about the delay and decide whether to grant relief. Document Is Available Search www.harrismartin.com or Call (800) 496-4319 Order Ref# ART-0509-18 Vioxx Merck Opposes Plaintiffs’ Motion for Protective Order Related to Employee Depos NEW ORLEANS — Merck has filed an opposition to a motion plaintiffs filed in the MDL for a protective order preventing the cross-noticing of Merck employee depositions in the New Jersey coordinated litigation. In re: Vioxx Products Liability Litigation, MDL Docket No. 1657 (E.D. La.). The opposition, filed Aug. 16 in the U.S. District Court for the Eastern District of Louisiana, states that the plaintiffs’ deci10 sion to seek the protective order directly contradicts discussions between the parties that occurred during a May status conference. Merck also claims that the motion is at odds with the MDL court’s discovery orders, specifically Pretrial Order No. 9, which is designed to promote coordination between state and federal proceedings. “As both state and federal courts have recognized, coordinating federal and state discovery benefits all parties and the Court by reducing the waste that frequently results from overlapping litigation,” the opposition says. According to Merck, plaintiffs liaison counsel agreed to the cross-noticing of Merck employee depositions during a May 23 status conference, but now indicate that they were issued without any prior consultation or discussion between liaison counsel. Merck argues that if each deposition were to be taken separately, it would result in a waste of resources to the detriment of the defendant and the plaintiffs. “This is the type of litigation that calls out for such discovery coordination because of the sheer volume of cases in both state and federal court, and because plaintiffs in these cases are interested in virtually the same discovery,” Merck contends. The defendant also notes that the MDL plaintiffs’ motion is “particularly odd” because they are seeking protection from their own depositions claiming that they didn’t know about them. Merck says the plaintiffs contend they didn’t participate in any discussions regarding the dates and locations of the depositions and were only given two weeks’ notice that they had been crossnoticed. LITIGATION WATCH: ARTHRITIS DRUGS “However, since Lead Counsel in this proceeding also serve as lead counsel in New Jersey, they are the ones who noticed the New Jersey depositions in the first place,” Merck asserts. “The fact that the same counsel are noticing, taking and seeking protective orders from the same depositions makes plaintiffs’ effort to circumvent PTO-9 all the more inexcusable.” The opposition was filed by Phillip A. Wittmann, Anthony M. DiLeo, Dorothy H. Wimberly and Carmelite M. Bertaut of Stone Pigman Walther Wittmann in New Orleans. Document Is Available Search www.harrismartin.com or Call (800) 496-4319 Opposition Ref# ART-0509-12 Vioxx Committees Identify Stroke Case for Early Trial; No Trial Date Set NEW ORLEANS — The MDL plaintiff and defense steering committees have reportedly agreed on a stroke case that could be the second federal Vioxx case to go to trial. Hofmann v. Merck & Co. Inc., et al., No. 05-4103 (E.D. Pa.). According to a joint status report filed in the U.S. District Court for the Eastern District of Louisiana, the two groups have chosen Hofmann v. Merck & Co. Inc., a case filed in the Eastern District of Pennsylvania, as the first stroke case for early trial. The report says, however, that the Plaintiffs Steering Committee has objected to Hofmann being set for trial at this time. HARRISMARTIN’S LITIGATION WATCH: ARTHRITIS DRUGS – SEPTEMBER 2005 “The parties continue to meet and confer to discuss what type of case should be the second case tried in the MDL and a trial plan for that case,” the report says. The announcement comes less than one month after the committees selected a heart attack case, Plunkett v. Merck & Co. Inc., as the first of several thousand federal Vioxx cases now pending in the Eastern District of Louisiana to be tried. Plunkett was filed by Evelyn Irvin Plunkett on behalf of her husband, Richard, who died of a heart attack in 2001 after taking Vioxx for one month. Richard Irvin Jr., who managed a wholesale seafood business in Florida, was 53 years old when he died. Plunkett’s lawsuit was initially filed in Palm Beach County Circuit Court in Florida. On Aug. 23, the case was directly filed in the Eastern District of Louisiana and will be tried beginning Nov. 28 before Judge Eldon E. Fallon, who is presiding over MDL 1657. The Hofmann case, which has not yet been transferred to MDL 1657, was filed on behalf of Klaus Hofmann, who took Vioxx in the days leading up to a stroke he suffered on Sept. 25, 2000. In addition to suing Merck, Hofmann has also named numerous Merck researchers as defendants in the lawsuit. Hofmann is represented by Thomas R. Kline, Shanin Specter, Lee B. Balefsky and Michelle L. Tiger of Kline & Specter in Philadelphia. Plunkett is represented by Andy Birchfield Jr., James Paul Sizemore and Jere L. Beasley of Beasley, Allen, Crow, Methvin, Portis & Miles in Montgomery, Ala. Documents Are Available Search www.harrismartin.com or Call (800) 496-4319 Joint Report Ref# ART-0509-09 Hofmann Complaint Ref# ART-0509-10 Plunkett Complaint Ref# ART-0509-11 Vioxx Federal Judge Says Texas Vioxx Medicaid Lawsuit Belongs in State Court AUSTIN, Texas — A lawsuit filed by the State of Texas, seeking reimbursement of money it paid to include Vioxx in the state’s Medicaid program, has been returned to state court after Merck removed the suit. The State of Texas v. Merck & Co. Inc., No. 05-606 (W.D. Texas). Judge Lee Yeakel of the U.S. District Court for the Western District of Texas remanded the case to the Travis County District Court, rejecting claims by Merck that the state’s allegations were premised on alleged violations of federal regulation and that the State of Texas could not be considered a party for jurisdiction purposes. The state sued Merck earlier this year, alleging that it relied on misrepresentations the manufacturer made regarding Vioxx when it opted to place the arthritis drug on Texas’s Medicaid formulary. The state alleges that Merck concealed or failed to disclose information about the cardiovascular dangers associated with Vioxx and is seeking restitution for the value of all payments made for Vioxx prescriptions under the program, plus additional civil penalties. Merck removed the case, maintaining that federal question jurisdiction exists because Texas’s claims are premised on allegations that Merck violated regulations set forth and enforced by the FDA under the authority of the federal Food, Drug & Cosmetic Act. Merck further argued that Texas’s petition raises important federal questions related to the country’s Medicaid program and that the diversity exists because the real plaintiff in the action is the Texas Health and Human Services Commission, and not Texas. However, Judge Yeakel held that Merck failed in its attempt to prove the existence of diversity jurisdiction based on the identity of the named plaintiff being the state’s Health and Human Services Commission. Judge Yeakel stated that it is well-settled that a state is not a citizen for the purposes of diversity jurisdiction, and where a state is a party, there can be no federal jurisdiction. Similarly, Merck failed to carry its burden of proving that federal question jurisdiction exists, the judge stated. “Generally, a suit arises under federal law if there appears on the face of the complaint some substantial, disputed question of federal law,” Judge Yeakel wrote. “Here, based on Texas’s state-court petition, Texas clearly has asserted against Merck only Texas state-law claims under a Texas statute.” Additionally, the court noted, the plaintiffs’ petition clearly indicates that the Medicaid program at issue in the complaint is Texas’s, rather than the federal Medicaid program. The State of Texas is represented by Margaret M. Moore, Mark B. Tobey, Edward D. Burbach and Patrick J. O’Connell of the Texas Attorney General’s Office in Austin, Texas; and Michael T. Gallagher of Gallagher, Lewis & Downey in Houston. Merck is represented by Richard L. Josephson and Travis J. Sales of Baker Botts in Houston; and Kevin M. Sadler of Baker Botts in Austin, Texas. LITIGATION WATCH: ARTHRITIS DRUGS 11 ALL DOCUMENTS AVAILABLE FREE TO SUBSCRIBERS AT WWW.HARRISMARTIN.COM Document Is Available Search www.harrismartin.com or Call (800) 496-4319 Opinion Ref# ART-0509-17 Vioxx Federal Judge Refuses to Remand, Then Refuses to Stay Vioxx Action SEATTLE — A federal judge recently refused to stay a Vioxx class action, but only after ruling that the plaintiffs failed to show that the case had been wrongly removed by Merck under the recently enacted Class Action Fairness Act. Waitt v. Merck & Co. Inc., et al., No. 05-0759 (W.D. Wash.). U.S. Judge Robert S. Lasnik of the U.S. District Court for the Western District of Washington held July 27 that under the CAFA, it is the plaintiffs’ burden to prove that the class action would not be subject to damage and class member restrictions imposed by the new law. Judge Lasnik said the question of whether it is the plaintiffs’ burden to show that removal based on the CAFA was improper is an issue of first impression in federal jurisprudence. The underlying complaint was filed in King County Superior Court by Robert Waitt who is seeking economic damages from Merck for its alleged failure to reimburse him the cost of his unused Vioxx prescription. Waitt also maintains that Merck refused to return the unused portion after the company failed to reimburse him. Merck removed the case to the Western District and moved to stay the matter pending a ruling on whether it would be 12 transferred to MDL 1657. Waitt filed a cross-motion to remand, which Merck opposed on the ground that such motions should be considered by the MDL court. According to Judge Lasnik, resolution of the issues raised by Waitt’s motion to remand turned upon the recently enacted CAFA, specifically upon whether it places the burden of proof for the propriety of removal upon the plaintiff or defendant. Each party argued it was the responsibility of the other to show that removal was proper or improper. Judge Lasnik concluded it was Merck’s reading of the statute in that it was Congress’ intent for the CAFA to impose upon plaintiffs the burden of demonstrating that removal from state court was improvident. Waitt’s lone attempt to discharge the burden was to argue that he made a prima facie showing that his damages would not meet the $5 million amount-in-controversy requirement imposed by the CAFA for cases to remain in state court, the judge said. However, the plaintiff ’s response failed to include any of the economic damages suffered by the nationwide class he purportedly represents, Judge Lasnik noted. “In short, plaintiff has not met his burden; it follows that remand to state court is inappropriate,” the opinion said. Similarly inappropriate, Judge Lasnik ruled, would be deciding that the case should be stayed based on Merck’s argument that it involves facts similar to those in cases consolidated in MDL 1657. The judge found that because the instant matter does not involve allegations of personal injury or claims that Merck failed to warn of increased health risks associated with Vioxx, it does not involve questions similar to cases that are consolidated in the Eastern District of Louisiana. LITIGATION WATCH: ARTHRITIS DRUGS Waitt is represented by Richard Lawrence Martens of Martens-Ragen in Seattle. Merck is represented by Douglas A. Hofmann and Jeffrey Royal Johnson of Williams, Kastner & Gibbs in Seattle. NNC Group is represented by Andrew C. Gauen of Merrick, Hofstedt & Lindsey in Seattle. Document Is Available Search www.harrismartin.com or Call (800) 496-4319 Opinion Ref# ART-0509-13 Vioxx Judge Says Distributor May be Held Liable in Vioxx Case SACRAMENTO, Calif. — A California judge has rejected an argument by Merck & Co. Inc. that a defendant distributor cannot be held liable for allegedly failing to warn a Vioxx user of cardiovascular risks associated with the drug. Martin v. Merck & Co. Inc., No. 05-750 (E.D. Calif.). Judge Lawrence K. Karlton of the U.S. District Court for the Eastern District of California said in a remand order entered Aug. 15 that California courts have never addressed the issue of whether distributors can be sued for injuries caused by pharmaceuticals. However, Judge Karlton stated that the general rule is that strict liability for failure to provide adequate warnings runs to distributors as well as manufacturers, and may also extend to retailers in California. “Because California courts have not specifically addressed the issue, at the very least, it is an unsettled question of law,” Judge Karlton wrote. “Therefore, Merck cannot meet its heavy burden so as to defeat plaintiff ’s motion to remand.” HARRISMARTIN’S LITIGATION WATCH: ARTHRITIS DRUGS – SEPTEMBER 2005 The distributor, McKesson Corp., was named along with Merck in a lawsuit filed in state Superior Court by John Martin, who claims he was injured as a result of ingesting Vioxx. Merck removed the lawsuit to federal court, arguing that McKesson had been fraudulently joined. According to the defendant, Martin cannot maintain a viable claim against McKesson for his alleged injuries because California law does not impose a duty to warn on distributors. Martin moved to remand, and in further support of its removal, Merck argued that it is good public policy to apply to distributors the same exemption from liability in pharmaceutical liability cases as pharmacists are entitled to under California law. Judge Karlton, however, said the parallel argument fails because California’s public policy justification for exempting pharmacists from liability in similar circumstances is that pharmacists provide services. “McKesson, unlike pharmacists, does not provide the public with an analogous service. More importantly however, by relying primarily on public policy arguments, Merck effectively concedes that such a cause of action is not presently precluded under California law,” the judge wrote. “Therefore, Merck fails to meet its heavy burden to show to ‘a near certainty’ that McKesson’s joinder was fraudulent.” Judge Karlton also rejected Merck’s argument that Martin’s claims cannot stand because the learned intermediary applies to absolve distributors such as McKesson of any potential liability. The judge noted first that the learned intermediary doctrine is a defense that courts don’t usually consider in determining fraudulent joinder. Second, Judge Karlton commented that where a plaintiff — such as Martin — alleges that the dangers of the drug were scientifically know- able to the manufacturer, but that the doctor wasn’t warned of such dangers, liability may still extend to the manufacturer. though the plaintiff ’s original complaint didn’t name Merck as a defendant. Edsall v. Merck & Co. Inc., No. 05-2244 (N.D. Calif.). In the alternative, Merck had argued that Martin’s motion to remand should be denied because his general allegations against both defendants should not be a substitute for properly pleaded claims specifically asserted against McKesson. Merck said Martin’s failure to distinguish factual allegations against McKesson amounts to an admission of fraudulent joinder. In an Aug. 4 Memorandum and Order, Judge Marilyn Hall Patel of the U.S. District Court for the Northern District of California ruled that because complete diversity did not exist at the time Merck was joined to the complaint, and because severance of the Vioxx-related claims was not initiated by the plaintiff, the federal court lacks jurisdiction over the Vioxx claims. After reviewing Martin’s pleading and the factual record established in the case, Judge Karlton opined that Martin properly alleged viable state law causes of action against McKesson and, therefore, remand was warranted. Plaintiff Mylene Edsall sued several defendants in Contra Costa Superior Court for injuries she sustained while receiving hyperbaric oxygen therapy at a Walnut Creek, Calif., hospital. When Edsall filed her complaint, Merck was not specifically identified as a defendant; however, it was later revealed in a third amended complaint that Edsall ingested Vioxx prior to Merck’s decision to withdraw the drug and was seeking damages as a result. Martin is represented by C. Jean Cain, Clayeo C. Arnold and Clifford Lee Carter of the Law Office of Clayeo C. Arnold in Sacramento, Calif. Merck is represented by Susan B. Altman of Reed Smith in San Francisco. Document Is Available Search www.harrismartin.com or Call (800) 496-4319 Opinion Ref# ART-0509-03 Vioxx Plaintiffs’ Case Against Merck Remanded After Judge Severs Vioxx Claim SAN FRANCISCO — The severed Vioxx-related claims of a woman who sued Merck after allegedly suffering an injury in a hyperbaric oxygen chamber have been remanded to state court even After learning of the consolidated Vioxx proceedings in Los Angeles County, Merck’s co-defendants moved to sever the claims against them from those asserted against Merck. A state Superior Court judge granted the motion and Merck subsequently removed the action to the Northern District of California, asserting jurisdiction on the basis of diversity of citizenship. In June, Edsall moved to remand, arguing that there was not complete diversity at the time Merck was joined as a defendant in the state court action. Edsall also sought attorneys’ fees associated with the motion to remand. Merck followed with its own motion, asking the federal judge to stay the matter pending a decision by the Judicial Panel on Multidistrict Litigation on whether the case would be transferred to the Vioxx MDL. LITIGATION WATCH: ARTHRITIS DRUGS 13 ALL DOCUMENTS AVAILABLE FREE TO SUBSCRIBERS AT WWW.HARRISMARTIN.COM Judge Patel noted that while the interest of judicial economy frequently warrants a stay under circumstances presented by Edsall’s case, there are some instances where a motion to remand will raise questions of fact or law that wouldn’t otherwise arise in the MDL proceedings. “In particular, where case-specific issues of fact or law are raised by a motion to remand and a defendant has clearly failed to meet the substantive and procedural requirements for removing a state court action, ‘the court should promptly complete its consideration and remand the case to state court,’” the judge wrote. Judge Patel said that a cursory examination of Merck’s removal notice revealed that complete diversity did not exist at the time Merck’s status as a “Doe” defendant was revealed in the third amended complaint. Additionally, the state court order severing Edsall’s claims against Merck and removing all non-diverse defendants from the instant action was issued in response to a motion filed by Merck’s co-defendants and, therefore, has no bearing on the issue of jurisdiction, Judge Patel concluded. “It is well-established that a change in the nature of the claims or in the identity of the parties that occurs after a plaintiff ’s initial complaint has been filed in state court will not give rise to removal jurisdiction unless that change came about as a result of some ‘voluntary’ action taken by the plaintiff,” the judge said. “As there is nothing in Merck’s notice of removal to suggest that plaintiffs did anything to bring about the severance of their claims against Merck from their claims against Merck’s co-defendants, the state court’s order severing those claims cannot serve as a basis for removing plaintiffs’ state court action to this court.” Judge Patel further refused to award attorneys’ fees to plaintiffs’ counsel, citing their “apparent indifference to the out- 14 come of the proceedings.” According to the judge, Edsall failed to file an opposition to Merck’s motion to stay or to submit a timely reply brief in support of her motion to remand. Edsall is represented by Geoffrey Becker of Lafayette, Calif. Merck is represented by Kevin Michael Hara of Reed Smith Crosby Heafey in Oakland, Calif.; Michael K. Brown and Thomas J. Yoo of Reed Smith in Los Angeles; and Steven J. Boranian of Reed Smith in San Francisco. Document Is Available Search www.harrismartin.com or Call (800) 496-4319 Memorandum Order Ref# ART-0509-04 Vioxx Judge Rejects Merck’s Fraudulent Joinder, Improper Misjoinder Arguments its burden of demonstrating that distributor McKesson Corp. could be found liable for the plaintiffs’ alleged injuries. Similarly, Judge Walter held that there was no misjoinder of plaintiffs because the case did not include various groups of plaintiffs suing separate groups of defendants, a prerequisite for a finding of misjoinder under federal law. The plaintiffs had sued McKesson and Merck for allegedly causing their Vioxxrelated injuries. Merck removed the case alleging fraudulent joinder of McKesson and fraudulent misjoinder of the plaintiffs. The manufacturer had urged the court in the event that it found no fraudulent joinder of McKesson to sever the plaintiffs over whom the court has jurisdiction based on complete diversity of citizenship. Judge Walter found that the plaintiffs alleged in their complaint that McKesson distributed and sold Vioxx and purported to warn or inform users regarding the risks associated with the drug, yet concealed information with regard to the actual dangers “so as to maximize sales and profits at the expense of the health and safety of the public.” LOS ANGELES — A federal judge has rejected a claim by Merck & Co. Inc. that several plaintiffs in a California Vioxx suit were improperly misjoined to the complaint and that the plaintiffs similarly fraudulently joined a distributor defendant for the purpose of keeping the case in state court. Anderson v. Merck & Co. Inc., No. 05-4036 (C.D. Calif.). “These allegations clearly connect Defendant McKesson to Plaintiffs’ alleged injuries,” the judge wrote. “Although the majority of Plaintiffs’ allegations are stated against all ‘Defendants,’ including McKesson, under the liberal pleading requirements, such general allegations against all ‘Defendants’ are sufficient to charge Defendant McKesson with the alleged wrongful conduct.” In a motion remanding the case to the Los Angeles County Superior Court, Judge John F. Walter of the U.S. District Court for the Central District of California held that the complaint — which was filed by plaintiffs from California, New Jersey and New York — included allegations sufficient to satisfy Judge Walter further held that the causes of action asserted against McKesson are viable under California law, contrary to arguments asserted by Merck, which according to the judge failed to cite any California case holding that a distributor cannot be held liable for failure to warn. LITIGATION WATCH: ARTHRITIS DRUGS HARRISMARTIN’S LITIGATION WATCH: ARTHRITIS DRUGS – SEPTEMBER 2005 Plaintiffs are represented by Brian S. Kabateck, Richard Kellner and Frank Eric Marchetti of Kabateck Brown Kellner in Los Angeles; and Shawn Khorrami and Patricia L. Mitchell of the Law Offices of Shawn Khorrami in Van Nuys, Calif. Merck is represented by Steven J. Boranian, Thomas J. Yoo, Michael K. Brown and Gary Yunchian Chen of Reed Smith in San Francisco. Document Is Available Search www.harrismartin.com or Call (800) 496-4319 Order Ref# ART-0509-15 Celebrex, Bextra Northern District of California To Get Celebrex, Bextra MDL WASHINGTON, D.C. — The Judicial Panel on Multidistrict Litigation (JPML) has entered an order transferring nearly 31 cases alleging injuries caused by Bextra and Celebrex to a single federal judge in California, HarrisMartin Publishing is reporting. In re Bextra and Celebrex Marketing, Sales Practices and Products Liability Litigation, MDL Docket No. 1699 (JPML). According to an order released by the JPML just minutes ago, one docket involving personal injury and sales and marketing claims related to the arthritis drugs will be overseen by Judge Charles R. Breyer of the U.S. District Court for the Northern District of California. Numerous plaintiffs moved to create Celebrex and Bextra MDLs after the FDA requested that Pfizer remove Bextra from the market due to potentially fatal side effects, and that the manufacturer include stricter warnings on Celebrex’s labeling to indicate the risk of cardiovascular injury. In all, four prospective dockets were created for products liability and marketing and sales practices claims, or a combination of both. Initially, the moving plaintiffs had requested that the consolidated docket be established in the U.S. District Court for the Eastern District of Louisiana, where the Vioxx MDL is currently situated. Others requested that the cases be transferred to federal district courts in California, Delaware, Florida, New Jersey and Texas. Pfizer, which manufacturers Celebrex and Bextra, opposed centralization of all products liability actions, but supported consolidation of the marketing/sales practices cases, urging the judicial panel to transfer the cases to the U.S. District Court for the Southern District of New York. Opponents had also urged the panel to separate the dockets because of unique questions of fact related to each drug or the type of claims asserted. According to the JPML order, however, the actions in all four multidistrict dockets involve common questions of fact and centralization of the claims as one multidistrict proceeding in the Northern District of California will serve the convenience of the parties. The JPML also noted that no suggested location stood out as the geographic focal point for the litigation. “Thus we have searched for a transferee judge with the time and experience to steer this complex litigation on a prudent course,” the order said. “By centralizing this litigation in the Northern District of California before Judge Charles R. Breyer, we are assigning this litigation to a jurist experienced in complex multidistrict litigation and sitting in a district with the capacity to handle this litigation.” Document Is Available Search www.harrismartin.com or Call (800) 496-4319 Order Ref# ART-0509-23 Celebrex Pfizer to California Court: Celebrex is No Vioxx LOS ANGELES — Pfizer Inc. has filed a brief in California, asking the judge overseeing the coordination of Vioxx cases there to sever any claims that also allege injury caused by ingestion of Celebrex. Anderson v. Merck & Co. Inc., et al., No. BC331454 (Calif. Super. Ct., Los Angeles Cty.). The Objection to Coordination of Claims, which Pfizer filed Aug. 29 in Los Angeles Superior Court, says that allowing the Celebrex claims to proceed in the coordinated Vioxx proceedings would only perpetuate the filing of more cases. “The perception created by a coordination proceeding for products liability actions that included Celebrex likely would attract new unmeritorious filings,” the brief says. “Plaintiffs’ counsel who have chosen not to file cases at this time would be tempted to submit cases to a coordinated proceeding in hopes of piggybacking on existing counsel’s cases.” Pfizer has been named in a number of California state court cases where plaintiffs contend they were injured after taking Vioxx and Celebrex. Those cases have been transferred to Los Angeles, and consolidated under JCCP 4247, a multidistrict state court coordinated proceeding. LITIGATION WATCH: ARTHRITIS DRUGS 15 ALL DOCUMENTS AVAILABLE FREE TO SUBSCRIBERS AT WWW.HARRISMARTIN.COM However, Pfizer asserts that the Celebrex claims should be severed from those involving Vioxx because, among other things, Celebrex remains on the market and has been declared by the FDA to be a safe and effective drug. Document Is Included See Page 32 or Call (800) 496-4319 Opposition Ref# ART-0509-14 “Unlike most other products liability cases previously granted coordination status, Celebrex® is still on the market,” the objection states. “The FDA has never required or event requested its withdrawal from the market. And, no court or jury in the country has held that Celebrex® is defective in any regard (including with regard to its warnings), or that Pfizer was negligent in any respect relating to Celebrex®.” Bextra According to the objection, plaintiffs’ claims concerning Celebrex do not involve questions of fact or law common to those asserted against Vioxx manufacturer Merck & Co. Similarly, the coordinated Vioxx proceedings have been ongoing for years and Pfizer has not had an opportunity to participate in any of the discovery activity to date. “In the absence of common discovery issues, there would be no value to coordinating the Celebrex® claims in JCCP 4247,” Pfizer contends. “The inclusion of Pfizer within JCCP 4247 at this point would require wholesale adjustment to the Court’s plan for the management of these coordinated proceedings.” Pfizer also notes that judges in the federal Vioxx MDL and the coordinated state court Vioxx proceedings in New Jersey have entered orders severing Celebrex claims and remanding them to their originating courts. Pfizer is represented by Michael C. Zellers, Mollie F. Benedict and Peter E. Schnaitman of Tucker, Ellis & West in Los Angeles; and Charles Q. Socha, K. Michele Anderson and Su-Lyn Combs of Socha, Perczak, Setter & Anderson in Denver. 16 Pfizer Wants Michigan Law Applied to Pennsylvania Bextra Case PHILADELPHIA — Several defendants have filed a motion for judgment on the pleadings in a case filed in Pennsylvania by a Michigan woman who claims she suffered blood clots after taking Bextra and Vioxx. Henderson v. Merck & Co. Inc., et al., No. 04-5987 (E.D. Pa.). In a motion filed July 21, the defendants, led by Pfizer Inc., maintain that the case has no connection to the Eastern District of Pennsylvania and should be dismissed under Michigan law. Michigan has a statute prohibiting civil lawsuits against pharmaceutical manufacturers for products that received FDA approval. Pfizer argues that even if the U.S. District Court for the Eastern District of Pennsylvania applies its own state’s law to the complaint, the majority of plaintiff Mary Henderson’s claim would nevertheless be precluded by statutes prohibiting recovery from strict products liability and punitive damages. “It is well-settled under Pennsylvania law … that prescription drugs have been removed from the realm of Pennsylvania’s strict liability scheme,” Pfizer contends. Henderson, a resident of Michigan, sued Pfizer and several other defendants, claiming she suffered a series of blood clots and a heart attack in March 2003 after taking Bextra. Henderson then LITIGATION WATCH: ARTHRITIS DRUGS switched to Vioxx and again suffered dangerous blood clots in 2004, he complaint alleges. The lawsuit was eventually transferred to the Vioxx MDL; however, all of the non-Vioxx claims were simultaneously severed and remanded to the Eastern District of Pennsylvania. Pfizer now argues that Pennsylvania’s choice of law analysis should dictate that the laws of Michigan be applied to the case because only that state’s governmental interests would be impaired if the forum state’s laws were applied. Because Michigan prohibits its citizens from recovering against a drug manufacturer in tort, the Eastern District would be directly contradicting Michigan’s interest by allowing the case to move forward in Pennsylvania, Pfizer says. On the other hand, the manufacturer notes, Pennsylvania has no interest in whether foreign citizens such as Henderson may recover against foreign corporations. Regardless, Pennsylvania law wouldn’t provide Henderson the remedy she seeks either because Pennsylvania courts have held that the Commonwealth’s strict liability law doesn’t apply to prescription drugs. Henderson’s other claims for breach of warranty, fraud and punitive damages would similarly fail under Pennsylvania law because they weren’t pled with sufficient particularity, Pfizer argues. Henderson, however, contends in an Aug. 5 Opposition that the case should not be governed by Michigan law because it concerns defendants with significant ties to New York, Delaware, New Jersey and Pennsylvania. “Pfizer places great emphasis on the fact that the plaintiff was a resident of Michigan, but this completely ignores the fact that Merck is a Pennsylvania entity, Pfizer is a Delaware entity with a principal place of business in New York, and Pharmacia Corporation, Pharmacia & Upjohn, and G.D. Searle are Delaware HARRISMARTIN’S LITIGATION WATCH: ARTHRITIS DRUGS – SEPTEMBER 2005 corporations with principal places of business in New Jersey,” Henderson argues. “Thus, many states have interests in this action, and all of these states (except for Michigan) would find that a drug manufacturer can be held liable for injuries caused by its product regardless of whether there was FDA approval.” She further contends that Michigan law would not completely protect the defendants from liability because exceptions to the immunity statute allow for recovery where it is shown that the manufacturer committed fraud to achieve FDA approval for its product. Pfizer disputes that claim arguing not only that it denies any such allegations of fraud, but that Michigan courts have struck down the exceptions based on federal preemption arguments. As for Pfizer’s argument that the claims would be similarly dismissed under Pennsylvania law, Henderson maintains that the defendants would be subject to strict liability because the danger complained of was avoidable. “Where a class of drugs has established, as a matter of reasonable medical certainty, what the risk of a known side effect is, and another ‘me-too’ drug is introduced to the marketplace which substantially elevates that risk, it cannot be said that those drugs were ‘unavoidably unsafe.’ With respect to Bextra and Vioxx, the limitation set forth [by Pennsylvania law] should not apply,” Henderson’s opposition states. Henderson also argues that there is sufficient evidence, at this stage in the proceedings, to sustain her causes of action for fraud, breach of warranty and punitive damages. Henderson is represented by Scott D. Levensten and James McHugh of The Beasley Firm in Philadelphia. Pfizer is represented by Raymond Williams and Stephanie Fogel of Piper Rudnick Gray Cary in Philadelphia. Documents Are Included See Pages 36 and 48 or Call (800) 496-4319 Motion for Judgment Ref# ART-0509-07 Opposition Ref# ART-0509-08 Remicade Defendants Designate Experts In Remicade Death Case COLUMBIA, S.C. — Defendant Centocor has designated experts in a wrongful death suit filed by a South Carolina man whose wife died after being treated with Remicade. Huff v. Centocor Inc., et al., No. 04-1279 (D. S.C.). The Aug. 4 designation filed in the U.S. District Court for the District of South Carolina includes three experts who have been designated to testify at trial. Centocor has also indicated that it reserves the right to elicit testimony from three additional experts, all of them company officials. Centocor, Johnson & Johnson and Ortho-McNeil Pharmaceutical Inc. were all named in a complaint filed in March 2004 by Marcus Huff. Huff alleges that his wife Elaine was prescribed one infusion of Remicade and subsequently died after developing mycobacterium avium complex (MAC) and tuberculosis. Huff claims the defendants failed to adequately warn physicians and consumers of Remicade’s association with the risk of tuberculosis and other infections. Experts identified by Centocor are Mark H. DeLegge, M.D., FACG, CNSP of the Medical University of South Carolina’s Division of Gastroenerology and Hepatology in Charleston, S.C.; Grace McCall Auten, M.D., of Piedmont Infectious Disease Consultants in Hickory, N.C.; and Barbara G. Matthews, M.D., MPH, of BioDirect Inc. in Silver Spring, Md. Centocor also indicated that it reserves the right to elicit testimony from its Vice President of Medical Affairs, Thomas F. Schaible; Vice President of Sales & Marketing, Scott Habig; and Stella S. Jones, Ph.D., the company’s Vice President of Regulatory Affairs. Huff is represented by Fred Thompson of Motley Rice in Mt. Pleasant, S.C. J. Drayton Hastie III of Parker Poe Adams & Bernstein in Columbia, S.C. are counsel for Centocor, Johnson & Johnson and Ortho-McNeil. David N. Allen and John E. Grupp of Parker Poe Adams & Berstein in Charlotte, N.C.; and John D. Winter of Patterson Belknap Webb & Tyler in New York are counsel for the defendants. Documents are Available Call (800) 496-4319 or Search www.harrismartin.com Designation Ref# ART-0509-16 Remicade Iowa Plaintiff Blames Remicade for Brain Damage IOWA CITY, Iowa — The mother of Crohn’s Disease patient has sued the manufacturer of Remicade, alleging the biologic therapy was defective and caused her daughter to suffer severe brain damage. Jennifer Rae Zach, et al. v. Centocor Inc., et al., No. LACV066002 (Iowa Dist. Ct., Johnson Cty.). LITIGATION WATCH: ARTHRITIS DRUGS 17 LITIGATION WATCH: ARTHRITIS DRUGS – ONLINE AT WWW.HARRISMARTIN.COM On July 8, Marjorie Carson-Zach, as mother and conservator of Jennifer Rae Zach, filed a lawsuit in the Iowa District Court for Johnson County against Centocor Inc., which manufactures and markets Remicade, and Johnson & Johnson Inc., which owns Centocor. Carson-Zach’s allegations include strict product liability, breach of express and implied warranties, failure to warn, negligence, misrepresentation, loss of consortium and negligent infliction of emotional distress. Jennifer Rae Zach was diagnosed with Crohn’s Disease in July 2002 and was administered Remicade for treatment of the disease from approximately July 2002 through April 2004 at the University of Iowa Hospitals and Clinics. Centocor designed, manufactured, marketed and sold Remicade for use by patients with Crohn’s Disease, ankylosing spondylitis and rheumatoid arthritis. Carson-Zach asserts that her daughter — her Crohn’s Disease aside — was in good health and succeeding as a university student prior to beginning the Remicade treatment. In July 2003, however, Zach began to experience “psychological problems,” Carson-Zach says. According to the complaint, for the remainder of 2003 and in subsequent years, Zach sustained severe damage to her brain, nervous system and body, resulting in permanent brain damage and the need for 24-hour care. In June 2004, Zach was diagnosed with demyelination of the brain secondary to Remicade, the lawsuit says. On or about Aug. 11, 2004, after the University of Iowa Hospitals and Clinics filed a report of Zach’s diagnosis with the FDA, Centocor updated its warning label for Remicade and cooperated with the filing of a relevant FDA warning, the complaint alleges. 18 Carson-Zach claims the allegedly defective condition of Remicade was “unreasonably dangerous to users or consumers, including [Zach], when used in a reasonably foreseeable manner.” Furthermore, Carson-Zach asserts that the conduct of the defendants was willful, wanton and in reckless disregard of the health, safety and rights of plaintiffs, thereby entitling plaintiffs to punitive damages in addition to other damages and costs. Counsel for the plaintiffs are James L Pray, Brian P. Rickert and Rebecca A. Brommel of Brown, Winick, Graves, Gross, Baskerville and Schoenebaum in Des Moines, Iowa. Document is Available Call (800) 496-4319 or Search www.harrismartin.com Complaint Ref# ART-0509-21 Enbrel Georgia Plaintiff Says Enbrel Caused Multiple Sclerosis COLUMBUS, Ga. — A Georgia resident has filed a personal injury and product liability lawsuit involving the product Enbrel, alleging the drug caused his development of multiple sclerosis. Baggett v. Amgen Inc., et al., No. 4-05-cv82 (M.D. Ga., Columbus Div.). On June 22, David William Baggett filed suit in the State Court of Muscogee County (Ga.), claiming that because of the acts and/or omissions of the defendants, which resulted in Baggett’s use of Enbrel, he sustained permanent injuries, including but not limited to multiple sclerosis. Defendants Amgen Inc., Immunex Corp. and Immunex Manufacturing Corp. removed the case on July 28 to the U.S. District Court for the Middle District of Georgia. LITIGATION WATCH: ARTHRITIS DRUGS Baggett is seeking a trial court judgment against each of the defendants jointly and severally for all alleged damages and injuries. His allegations include strict liability, negligent and intentional misrepresentation, defective design and failure to warn. Baggett alleges that the defendants have marketed or co-marketed Enbrel without adequately warning of the dangers associated with its use and by overstating the utility and safety of Enbrel as compared to those dangers. Baggett asserts that he was prescribed self-administered injections of Enbrel beginning on June 23, 2003, allegedly without any knowledge of the serious side effects that Enbrel could cause. Following his prescription and alleged proper administration of Enbrel, Baggett says he began to suffer physical illness and injury that have caused and will continue to cause pain and suffering, emotional distress, reduction in ability to enjoy life, as well as economic losses in earning capacity and medical expenses. Baggett is represented by Richard A. Childs in Columbus, Ga. Counsel for Amgen Inc., Immunex Corp. and Immunex Manufacturing Corp. are Jerry A. Buchanan and Benjamin A. Land of Buchanan & Land in Columbus, Ga.; Michael L. Kidney of Hogan & Hartson in Washington, D.C.; and Mark D. Gately of Hogan & Hartson in Baltimore. Counsel for Wyeth, Wyeth Pharmaceuticals Inc. and all purported Wyeth defendants are Stephen Brooks of Nelson Mullins Riley & Scarborough in Atlanta and Michael W. Hogue of Nelson Mullins Riley & Scarborough in Columbia, S.C. Documents are Available Call (800) 496-4319 or Search www.harrismartin.com Complaint Ref# ART-0509-19 Removal Notice Ref# ART-0509-20 HARRISMARTIN’S LITIGATION WATCH: ARTHRITIS DRUGS – SEPTEMBER 2005 LITIGATION WATCH: ARTHRITIS DRUGS 19 LITIGATION WATCH: ARTHRITIS DRUGS – ONLINE AT WWW.HARRISMARTIN.COM 20 LITIGATION WATCH: ARTHRITIS DRUGS HARRISMARTIN’S LITIGATION WATCH: ARTHRITIS DRUGS – SEPTEMBER 2005 LITIGATION WATCH: ARTHRITIS DRUGS 21 LITIGATION WATCH: ARTHRITIS DRUGS – ONLINE AT WWW.HARRISMARTIN.COM 22 LITIGATION WATCH: ARTHRITIS DRUGS HARRISMARTIN’S LITIGATION WATCH: ARTHRITIS DRUGS – SEPTEMBER 2005 LITIGATION WATCH: ARTHRITIS DRUGS 23 LITIGATION WATCH: ARTHRITIS DRUGS – ONLINE AT WWW.HARRISMARTIN.COM 24 LITIGATION WATCH: ARTHRITIS DRUGS HARRISMARTIN’S LITIGATION WATCH: ARTHRITIS DRUGS – SEPTEMBER 2005 LITIGATION WATCH: ARTHRITIS DRUGS 25 LITIGATION WATCH: ARTHRITIS DRUGS – ONLINE AT WWW.HARRISMARTIN.COM 26 LITIGATION WATCH: ARTHRITIS DRUGS HARRISMARTIN’S LITIGATION WATCH: ARTHRITIS DRUGS – SEPTEMBER 2005 LITIGATION WATCH: ARTHRITIS DRUGS 27 LITIGATION WATCH: ARTHRITIS DRUGS – ONLINE AT WWW.HARRISMARTIN.COM 28 LITIGATION WATCH: ARTHRITIS DRUGS HARRISMARTIN’S LITIGATION WATCH: ARTHRITIS DRUGS – SEPTEMBER 2005 LITIGATION WATCH: ARTHRITIS DRUGS 29 LITIGATION WATCH: ARTHRITIS DRUGS – ONLINE AT WWW.HARRISMARTIN.COM 30 LITIGATION WATCH: ARTHRITIS DRUGS HARRISMARTIN’S LITIGATION WATCH: ARTHRITIS DRUGS – SEPTEMBER 2005 LITIGATION WATCH: ARTHRITIS DRUGS 31 LITIGATION WATCH: ARTHRITIS DRUGS – ONLINE AT WWW.HARRISMARTIN.COM 32 LITIGATION WATCH: ARTHRITIS DRUGS HARRISMARTIN’S LITIGATION WATCH: ARTHRITIS DRUGS – SEPTEMBER 2005 LITIGATION WATCH: ARTHRITIS DRUGS 33 LITIGATION WATCH: ARTHRITIS DRUGS – ONLINE AT WWW.HARRISMARTIN.COM 34 LITIGATION WATCH: ARTHRITIS DRUGS HARRISMARTIN’S LITIGATION WATCH: ARTHRITIS DRUGS – SEPTEMBER 2005 LITIGATION WATCH: ARTHRITIS DRUGS 35 LITIGATION WATCH: ARTHRITIS DRUGS – ONLINE AT WWW.HARRISMARTIN.COM 36 LITIGATION WATCH: ARTHRITIS DRUGS HARRISMARTIN’S LITIGATION WATCH: ARTHRITIS DRUGS – SEPTEMBER 2005 LITIGATION WATCH: ARTHRITIS DRUGS 37 LITIGATION WATCH: ARTHRITIS DRUGS – ONLINE AT WWW.HARRISMARTIN.COM 38 LITIGATION WATCH: ARTHRITIS DRUGS HARRISMARTIN’S LITIGATION WATCH: ARTHRITIS DRUGS – SEPTEMBER 2005 LITIGATION WATCH: ARTHRITIS DRUGS 39 LITIGATION WATCH: ARTHRITIS DRUGS – ONLINE AT WWW.HARRISMARTIN.COM 40 LITIGATION WATCH: ARTHRITIS DRUGS HARRISMARTIN’S LITIGATION WATCH: ARTHRITIS DRUGS – SEPTEMBER 2005 LITIGATION WATCH: ARTHRITIS DRUGS 41 LITIGATION WATCH: ARTHRITIS DRUGS – ONLINE AT WWW.HARRISMARTIN.COM 42 LITIGATION WATCH: ARTHRITIS DRUGS HARRISMARTIN’S LITIGATION WATCH: ARTHRITIS DRUGS – SEPTEMBER 2005 LITIGATION WATCH: ARTHRITIS DRUGS 43 LITIGATION WATCH: ARTHRITIS DRUGS – ONLINE AT WWW.HARRISMARTIN.COM 44 LITIGATION WATCH: ARTHRITIS DRUGS HARRISMARTIN’S LITIGATION WATCH: ARTHRITIS DRUGS – SEPTEMBER 2005 LITIGATION WATCH: ARTHRITIS DRUGS 45 LITIGATION WATCH: ARTHRITIS DRUGS – ONLINE AT WWW.HARRISMARTIN.COM 46 LITIGATION WATCH: ARTHRITIS DRUGS HARRISMARTIN’S LITIGATION WATCH: ARTHRITIS DRUGS – SEPTEMBER 2005 LITIGATION WATCH: ARTHRITIS DRUGS 47 LITIGATION WATCH: ARTHRITIS DRUGS – ONLINE AT WWW.HARRISMARTIN.COM 48 LITIGATION WATCH: ARTHRITIS DRUGS HARRISMARTIN’S LITIGATION WATCH: ARTHRITIS DRUGS – SEPTEMBER 2005 LITIGATION WATCH: ARTHRITIS DRUGS 49 LITIGATION WATCH: ARTHRITIS DRUGS – ONLINE AT WWW.HARRISMARTIN.COM 50 LITIGATION WATCH: ARTHRITIS DRUGS HARRISMARTIN’S LITIGATION WATCH: ARTHRITIS DRUGS – SEPTEMBER 2005 LITIGATION WATCH: ARTHRITIS DRUGS 51 LITIGATION WATCH: ARTHRITIS DRUGS – ONLINE AT WWW.HARRISMARTIN.COM 52 LITIGATION WATCH: ARTHRITIS DRUGS HARRISMARTIN’S LITIGATION WATCH: ARTHRITIS DRUGS – SEPTEMBER 2005 LITIGATION WATCH: ARTHRITIS DRUGS 53 LITIGATION WATCH: ARTHRITIS DRUGS – ONLINE AT WWW.HARRISMARTIN.COM 54 LITIGATION WATCH: ARTHRITIS DRUGS Register Now for HarrisMartin’s BENZENE LITIGATION CONFERENCE “Effective Handling of Benzene Cases: The Pros Speak” Under the direction of conference co-chairs Raphael Metzger and Lawrence Riff, HarrisMartin Publishing has developed an entirely new and practical program to guide litigators through the legal and medical complexities of a Benzene case. If you want to learn the ins and outs of a benzene case and hear the latest strategies being employed by those on the front lines of the litigation, you can’t afford to miss this event! Sept. 29-30 at the Ritz-Carlton Hotel, Marina Del Rey, California Day 1, Thursday, September 29, 2005 2:30 p.m. – 2:45 p.m. Refreshment Break 7:00 a.m. – 8:15 a.m. Continental Breakfast and Registration 2:45 p.m. – 4:00 p.m. Settling a Benzene Case: The Ethical Minefield • Representation of Joint Clients • Settling Future Wrongful Deaths Claims • Settling Minors' Claims • Confidentiality Agreements • Discharging the Duty of Candor during Mediation Judge Victoria G. Chaney, Los Angeles Superior Court Judge William Schoettler (Retired), Los Angeles Superior Court Moderator: Diane Karpman, Karpman & Associates, Los Angeles, CA 8:15 a.m. – 8:30 a.m. Welcome by Co-Chairs Plaintiff Co-Chair: Raphael Metzger, Metzger Law Group, Long Beach, CA Defense Co-Chair: Lawrence P. Riff, Steptoe & Johnson LLP, Los Angeles, CA 8:30 a.m. – 10:00 a.m. Pure and "Trace" Benzene Cases: The Fundamentals • In What Settings Do the Cases Arise? • Who are the Potential Defendants and Potential Plaintiffs? • Joint Defense Issues • How Do the Cases Really Play Out in Court? Plaintiff Speakers: Dean Hartley, Hartley & O'Brien, Wheeling, WV Raphael Metzger, Metzger Law Group, Long Beach, CA J. Keith Hyde, Provost Umphrey, Beaumont, TX Defense Speakers: Andrew Schirrmeister, Schirrmeister Diaz Arrastia Brem, Houston, TX Robert Scott, Abrams, Scott & Bickley, Houston, TX Lawrence P. Riff, Steptoe & Johnson LLP, Los Angeles, CA 4:00 p.m. – 5:00 p.m. Primer on Diseases of Blood • Structure and Function of the Blood Forming Organs • Hematotoxicity of Benzene • Genotoxicity of Benzene • Carcinogenicity of Benzene Greg Sarna, M.D., FACP (Medical Oncology), Cedar Sinai Medical Center, Los Angeles, CA 5:00 p.m. – 6:30 p.m. Networking Cocktail Reception Day 2, Friday, September 30, 2005 10:00 a.m. – 10:15 a.m. Refreshment Break 7:30 a.m. – 8:30 a.m. Continental Breakfast 10:15 a.m. – 11:15 a.m. Benzene Exposure Assessment • Theories, Data Gaps and Solutions Herschel Hobson, Ph.D., J.D., Herschel L. Hobson Law, Beaumont, TX Dennis Paustenbach, Ph.D., CIH, DABT, ChemRisk, San Francisco, CA 8:30 a.m. – 9:30 a.m. The Toxicology and Epidemiology of Benzene • Cancer Effects • Non-Cancer Effects David Pyatt, Ph.D., Summitt Toxicology, Lafayette, CO Myron A. Mehlman, Ph.D., Mt. Sinai School of Medicine, New York, NY 11:15 a.m. – 12:00 noon The Law: Proving Up and Defending Against Liability • The Legal Theories • The Legal Defenses • The Law of Causation • Expert Opinion Admissibility • Motion Practice Denyse Clancy, Baron & Budd, Dallas, TX Frederick J. Ufkes, Kirkpatrick Lockhart Nicholson Graham LLP, Los Angeles, CA 9:30 a.m. – 10:30 a.m. Successful Trial Themes in the Plaintiff and Defense Cases • Picking the Right Jury • Identifying the Moral and Emotional Hot Buttons Angela Abel, DecisionQuest, Atlanta, GA Tom Girardi, Girardi & Keese, Los Angeles, CA Robert Scott, Abrams, Scott & Bickley, Houston, TX 12:00 noon – 1:30 p.m. Luncheon 10:45 a.m. – 12:00 noon Medical Causation: The Synthesis of General and Specific Causation Nachman Brautbar, MD, USC, Los Angeles, CA Joseph Fedoruk, MD, DABT, CIH, Exponent, Irvine, TX 1:30 p.m. – 2:30 p.m. Managing the Benzene Docket: The In-House Perspective Theodore P. Ray, ExxonMobil Corporation, Irving, TX J. Thomas Deal, Chevron U.S.A. Inc., San Ramon, CA Richard B. (Burt) Ballanfant, Shell Oil Co., Houston, TX 10:30 a.m. – 10:45 a.m. Refreshment Break 12:00 p.m. Adjourn Marina Del Rey, California • Sept. 29-30 • Ritz-Carlton Hotel Reserve Your Spot Today! Call our Conference Registrar at 800-496-4319. Or you may register online at www.harrismartin.com. LITIGATION WATCH: ARTHRITIS DRUGS – ONLINE AT WWW.HARRISMARTIN.COM HarrisMartin’s Litigation Watch: ARTHRITIS DRUGS CONFERENCES EDITORIAL STAFF Make your plans NOW for these important HarrisMartin CLE Editorial Director Jeff Andrus Managing Editor John T. Hayes Las Vegas Sept. 15- Editor Kate McGovern Staff Editor Pam Kropf Art & Production Manager Jennifer Hartman National Silica BUSINESS STAFF N A T I O N A L SILICA LITIGATION C O N F E RENCE Co-Chairs: • Barbara J. Barron/MehaffyWeber • Louis L. Plotkin/Gertler, Gertler, Vincent & Plotkin • Steven L. Russell/Beirne, Chief Executive Officer Harry J. Hurley III Customer Service Representative Amanda Swanson Marina del Rey BENZENE LITIGATION C O N F E RENCE “Effective Handling of Benzene Cases: The Pros Speak” TRACKING CASES AND RESEARCH IN EMERGING ARTHRITIS DRUG LITIGATION Benzene Litigation Published monthly by Co-Chairs: • Raphael Metzger/Metzger Law Group • Lawrence Riff/Steptoe & HarrisMartin Publishing LLC 920 Cassatt Road, Suite 210 Berwyn PA 19312-1178 Fax: 610-647-5164 www.harrismartin.com E-mail editorial correspondence and news to: [email protected] South Beach Subscription Orders and Customer Service: E-mail: [email protected] or call 800-496-4319. Annual subscription rate: $595. C A R D I A C DEVICE LITIGATION C O N F E RENCE For Plaintiffs Counsel Only Conference Chair: Tobi Millrood/Schiffrin & Barroway LLP Copyright © 2005 by HarrisMartin Publishing LLC All rights reserved. Cardiac Device Ritz-Carlton South Beach • Miami, T o Register: 800-496-4319 or online at www.har- 56 LITIGATION WATCH:ARTHRITIS DRUGS