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When jury selection for the first Vioxx trial in New Jersey begins in Atlantic City next Monday, each side will face formidable opposition, which should not surprise anyone in light of the stakes. Merck & Co. Inc. faces more than 5,000 personal injury suits nationwide and almost half are in New Jersey. Because the company is based there, in Whitehouse Station, it cannot have the cases removed to federal court. And venue can’t be changed from Atlantic County because Superior Court Judge Carol Higbee has been designated the state’s Vioxx judge. Since venue and early verdicts tend to play crucial roles in multidistrict product liability litigation, the outcome of the trial in Humeston v. Merck & Co. ATL-L-2272-03, will likely shape future bargaining and strategies for both sides. On Aug. 25, a day after a Texas jury awarded $253 million in the first trial in the country, General Counsel Kenneth Frazier said Merck was not considering a global settlement but might settle some cases, particularly those by plaintiffs with no signs of heart or stroke problems. Christopher Seeger, a lead plaintiffs’ lawyer in Humeston, says that whether Merck, like any company, will be pushed by losses into a global settlement “is the zero sum game for both sides.” MERCK’S TEAM Merck’s counsel for the first trial includes Diane Sullivan, of Dechert in Princeton; Stephen Raber, a partner with Washington, D.C.’s Williams & Connolly; and Christy Jones, a partner with the Jackson, Miss., firm of Butler, Snow, O’Mara, Stevens & Cannada. Raber has also worked on the plaintiffs’ side. As a Williams & Connolly associate, he and a partner won an $11 million verdict in 1988 for a 12-year-boy critically burned in a laboratory accident at a Washington, D.C., grammar school. The defendant was American University, which provided the chemicals for a summer program at the public school. Raber handles disparate matters, not just product liability cases. In the early 1990s, he represented a former Miami-based FBI agent, Fernando Mata, involved in foreign counterintelligence who was among 331 Hispanic agents who successfully sued the bureau for civil rights violations. Mata later claimed that disclosures in a book about the case placed his life in danger from anti-Castro terrorists, and he filed a retaliation claim against the FBI for allegedly leaking classified information. The U.S. Supreme Court affirmed a ruling against him. Raber has also worked on patent infringement matters and a multibillion-dollar merger and acquisition deal. Jones, by contrast, concentrates on mass tort and toxic tort cases, often in multidistrict, product liability litigation over drugs and medical devices. No stranger to big pharmaceutical cases against New Jersey corporations, she helped defend a Johnson & Johnson subsidiary, Janssen Pharmaceutical Inc., in litigation over the heartburn drug Propulsid. In 2001, a Claiborne County jury in Mississippi awarded $10 million each to 10 plaintiffs who claimed the drug caused heart problems and anxiety attacks. (The judge cut the total verdict to $48.5 million and in May 2004, Mississippi’s Supreme Court threw out the entire case.) Jones enjoyed another victory defending Baxter Healthcare Corp. of Deerfield, Ill., in 1995 breast-implant litigation. She led the defense team that convinced a Zavala County, Texas, jury that Baxter’s implants did not cause medical problems for two women who said they suffered from “atypical” neurological syndrome. Dechert’s Sullivan represented the Defense Research Institute as an amicus last summer in Smith v. American Home Products Corp., MID-L-08505. At issue before Superior Court Judge Marina Corodemus was the critical products liability question of whether defense lawyers could interview the plaintiffs’ treating doctors ex parte following the enactment in 1996 by Congress of the Health Insurance Portability and Accountability Act, or HIPPA. Corodemus, who had been the state’s mass tort judge in New Brunswick for many years, ruled that the defense may do so, but with well-defined contours and limitations. Sullivan has also successfully defended Baxter against several hundred suits involving latex gloves. Sullivan filed four more motions last Friday in Humeston, seeking to exclude all or parts of testimony from several expert witnesses, as well as to exclude some evidence on causation filed by a plaintiff expert doctor. Higbee set Thursday for argument. Last Monday, the judge denied Merck’s motion to put the trial off for 45 days due to the “media blitz” after the Texas verdict. She further denied motions by Raber to exclude Merck marketing and promotional materials about Vioxx, and other evidence about Merck’s conduct. Raber argued that neither Humeston nor his doctors met any Merck sales representatives who had gone through the promotional program at issue, saying, “The question is whether this is going to be a products liability trial or a circus.” Higbee replied, “I can guarantee you this trial will not be a circus.” THE PLAINTIFFS’ TEAM The firm of lead plaintiffs’ lawyer Seeger, 21-attorney Seeger Weiss of New York, is not only liaison counsel for the New Jersey Vioxx litigation, but co-lead counsel for the 1,800 federal cases. In finding that Seeger Weiss was qualified to represent a class action plaintiff in a pending Vioxx consumer fraud case also before Higbee, the judge said “there is probably no other law firm as knowledgeable about Vioxx.” Higbee said the firm has led the discovery process and is the depository for seven million documents already produced in the matter nationwide. Seeger was part of a team that this past June won a $690 million settlement against Eli Lilly & Co. on behalf of 8,000 plaintiffs who claimed they developed diabetes and other diseases after taking the schizophrenia and bipolar disorder drug Zyprexa. Seeger Weiss represented 900 of the plaintiffs in the federal suit in New York. The suits, settled individually, represented about 75 percent of all the cases filed. Court records online show that the firm represents 225 Vioxx plaintiffs in Atlantic County, while the firm’s co-lead counsel, Anapol, Schwartz, Weiss, Cohan, Feldman & Smalley of Philadelphia and Cherry Hill, have another 152 cases. The first plaintiff to go to trial, Humeston, was originally represented by Anapol Schwartz. Seeger says the firms are working together. Seeger’s partner in the Humeston trial will be David Buchanan, of the firm, who has been handling the Vioxx litigation before Higbee with Seeger. Seeger’s fellow name partner, Stephen Weiss, is the son of well-known plaintiffs’ class action lawyer Melvin Weiss of New York’s Milberg Weiss Bershad & Schulman. Both name partners began as defense attorneys, with Seeger working for Shearman & Sterling for more than a year after law school, and with Stephen Weiss spending nine years as an environmental lawyer with New York’s Fried Frank Harris Shriver & Jacobson. The pair, who met at Yeshiva University’s Benjamin N. Cardozo School of Law, formed the firm in 1999, and later opened a branch in Newark. About half of Seeger Weiss’s lawyers are admitted in New Jersey. Fred Humeston, 60, is from Boise, Idaho. He claims that using Vioxx caused a heart attack in 2001, at age 56. Merck attorneys counter that the ex-Marine had clogged arteries, was overweight and could not have had negative effects after just two months’ use. Merck contends that the acknowledged risk to Vioxx users affects only those taking the drug for more than 18 months. “This is the battleground,” says Seeger, speaking of the importance of the litigation about to begin in Atlantic City, a gaming capital where both sides will roll the dice with a jury they will pick.

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