Plaintiffs lawyers established a pretty abysmal trial record against Merck in the Vioxx mass tort. Of the roughly 19 cases that were tried, only five resulted in verdicts for the plaintiffs. Instead, it was the sheer volume of Vioxx claims -- approximately 50,000 -- that forced Merck into a $4.85 billion settlement in 2007.
Now the plaintiffs lawyers who did the lion's share of the work in attaining that global settlement are being rewarded for their efforts. In a 38-page ruling (pdf) Tuesday, New Orleans federal district court Judge Eldon Fallon, who oversaw the Vioxx multidistrict litigation, awarded $315,250,000 to "all attorneys who performed common benefit work" in the MDL and associated state litigation. That amounts to 6.5 percent of the $4.85 billion settlement.
The award was less than the 8 percent first requested in a motion (pdf) by the MDL plaintiffs liaison counsel last year. After objections by other plaintiffs lawyers, the liaison counsel reduced their request to 7.5 percent.
Although Fallon shaved off another 1 percent ($48.5 million), he heaped praise on the plaintiffs lawyers who led the Vioxx litigation, noting that in 31 months the parties were able to reach a global settlement and provide benefits to 32,886 claimants, out of a pool of 49,893 eligible and enrolled claimants. "[That] efficiency is unprecedented in mass tort settlements of this size," Fallon wrote. "Counsel met and exceeded this court's desire for expedited resolution of this matter."
The judge enumerated accomplishments of the lead plaintiffs lawyers: "Following the formal appointment of the PLC and the [Plaintiffs' Steering Committee], the attorneys committed to intensive discovery and pretrial efforts. The PSC operated on many fronts, preparing pleadings and master class action complaints, taking over 2,000 depositions, reviewing and compiling over 50,000,000 documents, briefing and arguing over 1,000 discovery motions, assembling a trial package, conducting bellwether trials, negotiating the global settlement agreement, and implementing the payout under the agreement. The time and labor expended in this effort is impressive."
Fallon's ruling, first reported by Bloomberg, is also worth reading for the judge's musings on selecting lead plaintiffs counsel in a sweeping MDL. Particularly as the Gulf oil spill and Toyota MDLs get underway, it's interesting to hear Fallon defend judicial appointments of lead counsel, as opposed to plaintiffs lawyers working out their own deals.
"The selection of lead counsel by their fellow attorneys would involve intrigue and side agreements which would make Macbeth appear to be a juvenile manipulator," the judge wrote. Frequently, recommendations by attorneys for positions on leadership committees are governed more "on friendship, past commitments and future hopes than on current issues."
Russ Herman of Herman, Herman, Katz & Cotlar, plaintiffs liaison counsel, praised Fallon's decision, which he said was "succinct" and "well-reasoned."
Andy Birchfield Jr. of Beasley, Allen, Crow, Methvin, Portis & Miles, who was co-lead counsel in the Vioxx MDL, did not return a call for comment. Nor did Arnold Levin of Levin, Fishbein, Sedrad & Berma, a member of the plaintiffs' steering committee. Among the other attorneys benefiting from Fallon's ruling are Chris Seeger of Seeger Weiss; Thomas Kline of Kline & Specter; Richard Arsenault of Neblett, Beard & Arsenault; Shelly Stanford of Sanford Barlow; Elizabeth Cabraser of Lieff Cabraser Heimann & Bernstein; Gerald Meunier of Gainsburgh, Benjamin, David, Meunier & Warshauer; Troy Rafferty of Levin Papantonio Thomas Mitchell Rafferty; Mark Robinson Jr. of Robinson, Calcagnie & Robinson; Drew Ranier of Ranier, Gayle & Elliot; and Christopher Tisi of Ashcraft and Gerel.
This article first appeared on The Am Law Litigation Daily blog on AmericanLawyer.com.