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Drug manufacturer Merck & Co.’s withdrawal of Vioxx on Sept. 30 has led to what one plaintiffs lawyer calls a “feeding frenzy” around the country and in Texas as attorneys seek clients allegedly harmed by the popular arthritis and pain medication. Merck announced its voluntary recall of Vioxx, which had been on the market since 1999, based on new data from a three-year clinical study showing the increased risk of heart attacks or strokes in patients who had taken the medication for 18 months. But a South Texas woman alleges in her petition in Olga Sanchez v. Merck & Co., filed last month in Edinburg’s 370th District Court, that prior studies showed “serious adverse risks” from taking Vioxx. The Vioxx litigation will be the first involving pharmaceutical products liability since the H.B. 4 changes took effect. Among other things, H.B. 4, the tort reform measure that the Texas Legislature passed in May 2003, provides new presumptions of non-liability for drug defendants in products liability suits and allows defendants to challenge venue before a case goes to trial. “H.B. 4 should have a moderating influence on pharmaceutical litigation, particularly for doctors, hospitals and pharmacists,” says Mike Hull, an Austin attorney who helped write the legislation. Hull, a Hull Henricks & MacRae partner who handles pharmaceutical products liability suits but is not involved in Vioxx litigation, says H.B. 4 should reduce venue shopping, frivolous claims and overreaching monetary claims. “H.B. 4 will not prevent meritorious claims from being filed,” he says. Plaintiffs lawyers view certain provisions in the legislation as hurdles they have to overcome in Vioxx litigation. “There are challenges,” says Chris Pinedo, a partner in the Watts Law Firm in Corpus Christi. “We’re confident that we’ll be able to overcome them in these cases.” “It’s something we’ve got to live with,” McAllen attorney Ricardo Garcia says of H.B. 4. Garcia, principal in the Law Offices of Ricardo A. Garcia, represents Sanchez, a 67-year-old Pharr resident who alleges in her petition that she suffered severe chest pains and had to have heart surgery after taking Vioxx for several months. Among other things, Sanchez alleges in the petition that her damages are the result of Merck’s negligence in failing to warn her and other consumers of the potential risks or to adequately test the product. Baker Botts, which represents Merck in Sanchez, declines comment, says Melanie Mahaffey, a spokeswoman for the firm. Tony Plohoros, a Merck spokesman, says the company does not comment on specific cases. “The company believes that it has meritorious defenses to the Vioxx lawsuits and will vigorously defend against them,” Plohoros says. Although it has yet to be determined what the full effect of H.B. 4 will be on Vioxx litigation, some Texas attorneys already are getting the word out that they are interested in handling such claims. The Watts Law Firm is one of five firms — four in Texas and one in Louisiana — advertising that they “have joined forces” and are now accepting referrals for all Vioxx cases. Other firms that sponsored the ad are Provost Umphrey of Beaumont and Williams Bailey of Houston — two of the firms that in 1998 helped negotiate a more than $17 billion settlement for Texas in its suit against Big Tobacco — as well as the Kaiser Firm of Houston and Rainer, Gayle & Elliot of Lake Charles, La. Pinedo says the five firms have worked together on other projects, including welding rod suits filed by individuals who allege they have suffered neurological problems similar to Parkinson’s disease because of exposure to manganese in welding rod fumes. Between 10 and 15 lawyers from the five firms will divide the work on the Vioxx cases, Pinedo says. The Watts and Kaiser firms will handle intake and the screening of clients to see if they had a heart attack or a stroke while taking Vioxx, he says. Pinedo says teams of lawyers from the firms will be given various assignments, ranging from reviewing clients’ medical records to locating expert witnesses. The five firms aren’t limiting their representation of clients with Vioxx claims to Texas, Pinedo says. “We’re anticipating handling cases all around the nation on Vioxx,” he says. HIGHWAY BILLBOARDS A Dallas firm has taken to the highways in its quest for clients with Vioxx claims. Kraft & Associates recently put up two billboards — one along Interstate 35 in Oak Cliff, south of downtown Dallas, and the other along Interstate 30 in East Dallas — to advertise its interest in the Vioxx litigation. Robert Kraft says his firm has received a lot of calls since the billboards went up on Oct. 20. “We’re telling people we don’t know what’s happening, but as soon as the situation shakes out, we will let them know their rights,” Kraft says. A disclaimer on the billboards states that the firm may refer some cases. Kraft says his firm probably will handle some cases but plans to refer others. The referral of cases could be affected by the outcome of a State Bar of Texas referendum. State Bar members are voting on a proposed amendment to Rule 1.04 of the Texas Disciplinary Rules of Professional Conduct that would eliminate the pure forwarding fee and require lawyers to have some continuing responsibility for the cases they refer. However, provisions in H.B. 4 are likely to have a bigger effect on the Vioxx litigation. “One of the first concerns is, do we even have a cause of action,” says Garcia, attorney for Sanchez, the Pharr resident who sued Merck and two doctors. One of the H.B. 4 provisions created Texas Civil Practice & Remedies Code (TCPRC) 82.007(a), which establishes a rebuttable presumption that health care providers, manufacturers, distributors and prescribers are immune from liability in failure-to-warn cases if the U.S. Food and Drug Administration approved the warnings or information that came with the product. Hull says he thinks 82.007 should cover doctors and pharmacists. For manufacturers to take advantage of that provision, there must be proof that the warnings or information were adequate, he says. Plaintiffs lawyers are likely to argue under TCPRC 82.008 that the warnings or information provided about Vioxx were inadequate or that the manufacturer withheld information from the government about the risks in using the product, Hull says. If the manufacturer did withhold information about a risk, Hull says, the FDA-approved warning is not adequate, and the 82.007 presumption of nonliability might not apply. H.B. 4 also establishes new venue concerns that could impact Vioxx suits. Under TCPRC 15.003, every plaintiff in multiplaintiff actions must independently establish venue, Hull notes. If a plaintiff cannot establish independent venue, 15.003 requires that a plaintiff’s claim or cause of action be transferred to a county of proper venue or be dismissed. A provision in the same statute also allows a defendant to challenge a trial court’s venue determination before trial. “I think that makes plaintiffs more careful about venue choices,” Hull says. Acting on H.B. 4′s mandate for the establishment of a judicial panel on multidistrict litigation, the Texas Supreme Court adopted Rule of Judicial Administration 13 late last year. Hull says the MDL panel could impact Vioxx cases by transferring actions to a single judge, or possibly two judges, for consolidated or coordinated pre-trial proceedings. Garcia says H.B. 4 also will affect the plaintiffs’ abilities to hold doctors accountable in Vioxx cases. TCPRC 74.351 sets a 120-day deadline from the date a suit is brought for the filing of expert reports that state the credentials of each expert. If the report is not filed by the deadline, the plaintiff’s claim must be dismissed and the physician is awarded reasonable attorney’s fees and court costs. H.B. 4 also limits a plaintiff’s recovery from physicians, Garcia says. Under 74.301, non-economic damages cannot exceed $250,000 for all physicians or health-care providers sued. The restrictions in H.B. 4 won’t be a problem for some Texas attorneys who filed Vioxx suits on behalf of clients before the legislation took effect. “We were on the Vioxx bandwagon before it was a bandwagon,” says Mark Lanier, head of The Lanier Law Firm in Houston. Lanier’s firm is working on a number of Vioxx cases with another Houston firm, Goforth Lewis Sanford. Carlene Lewis, a partner in Goforth Lewis, says her firm filed more than 200 Vioxx cases in Texas in May 2003 “in contemplation of the effects of H.B. 4.” One of the cases on which Lanier and Lewis have worked together is Deborah Daley, et al. v. Merck & Co., scheduled for trial in January 2005 before U.S. District Judge Leonard Davis in Tyler. Daley alleges in her petition that her husband, Robert Daley, died after suffering a heart attack in July 2001. Robert Daley took Vioxx daily for back pain until his death, his widow alleges in the petition. Lanier says he also is filing suits in New Jersey, where Merck is headquartered, to avoid H.B. 4 and will open a New York office sometime in November with two full-time lawyers whose responsibilities will include handling Vioxx litigation.

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