The New Jersey Law Journal has bestowed on Kenneth Frazier of Merck & Co. its 2013 award for lifetime achievement as corporate counsel.
The recognition is based on Frazier’s accomplishments in lawsuit defense, particularly his stewardship of the multistate litigation over Merck’s top-selling arthritis pain medication Vioxx.
The flood of thousands of suits was stanched in 2007 in a $4.85 billion global settlement that was one-tenth the amount that analysts had predicted.
By all accounts, it was Frazier’s leadership, strategy and decision-making that fostered this litigation success story.
“In all we do, my colleagues and I aspire to the highest standards of ethical conduct and corporate citizenship, and we are honored by this recognition,” Frazier said last week upon being notified of the award.
Vioxx had been taken by 20 million people in the U.S. alone and accounted for annual gross revenues of $2.5 billion. But Merck withdrew the drug from the market in September 2004 following a study that indicated links to heart attack and stroke in long-term users. After that, lawsuits abounded.
Frazier, as general counsel, took an active role in managing the massive litigation and did so very publicly, making it clear that Merck would stand its ground and resolve cases in the courtroom rather than at the negotiating table.
The wisdom of that position was questioned early on. In August 2005, the first bellwether trial, in a Houston federal court, yielded a $253 million jury verdict for the widow of a Vioxx user.
Merck shareholders felt the pinch, but Frazier maintained that Merck wasn’t considering a global settlement. (The award later was reduced and judgment entered in the amount of $26.1 million, which the U.S. Court of Appeals for the 14th Circuit ultimately reversed.)
The plaintiffs lawyers assembled what they touted as a legal dream team, consisting of 10 firms with 20,000 potential plaintiffs in tow, and attempted to nudge Merck toward a settlement.
Still, Frazier held firm. “We are in this for the long haul,” he said at the time. “We have both the resources and the resolve to address these cases one by one over many years.”
Frazier retained new outside defense counsel for the second bellwether trial. Behind the stalwart lawyering of Diane Sullivan, then a partner in Dechert’s Princeton office, Merck won a verdict in November 2005 as an Atlantic County jury found the company properly alerted doctors about Vioxx’s risks and did not engage in consumer fraud.
Frazier later told The American Lawyer, the Law Journal‘s sister publication, that the victory was the turning point in the litigation.
The month after the verdict, another trial in Houston ended in a mistrial.
Frazier continued to stay the course even as bumps were encountered. In April 2006, an Atlantic County jury awarded $4.5 million in compensatory and $9 million in punitive damages to a Park Ridge man and his wife, finding Merck willfully withheld information about Vioxx’s harmfulness.
Frazier said the jury “heard irrelevant and prejudicial information from the plaintiffs’ attorneys about Merck, and an appeal will be our next step.”
Months later, in a span of three days, Merck obtained two jury verdicts in its favor, in New Orleans federal court and Alabama state court.
“Juries continue to determine that Merck acted responsibly in its research of Vioxx and provided the appropriate information about Vioxx to patients and the medical community,” he said.
All told, just five of the nearly 20 cases tried resulted in plaintiffs’ verdicts. And in November 2007, after three years of fighting, Merck reached a global settlement with about 50,000 plaintiffs.
The agreement required it to pay $4.85 billion into two settlement funds: $4 billion for Vioxx users who suffered a myocardial infarction and $850 million for those who suffered ischemic strokes.
Merck’s payout was about 10 percent of the $50 billion that experts said a global settlement would be worth when Vioxx came off pharmacy shelves in 2004 — a result largely credited to the numerous trial victories.
The funds, if evenly divided, were enough to yield an average gross recovery of about $100,000 per claimant.
Sullivan, who was on the front lines of Merck’s trial successes, credits Frazier for keeping a tough, go-to-the-mat stance even when others had doubts.
Vioxx “became a bet-the-company problem, and Ken Frazier devised the strategy to try every case,” says Sullivan, now with Weil, Gotshal & Manges in Princeton and New York City.
“After the first loss in Texas, there was a lot of criticism from the media — calling for his head, frankly,” she says.
Frazier was actively involved, meeting with outside counsel before trials, and was eager to hear their views on strategic matters, she says.
For example, after the $253 million verdict in Houston in 2005, there was pressure from numerous sources to call CEO Raymond Gilmartin to the witness stand. Defense attorneys insisted it was better to exclude him. Frazier deferred to their viewpoint during the second Vioxx trial, which ended in a defense verdict.
The try-every-case strategy has been used by tobacco companies but otherwise is “not something you usually see,” Sullivan adds.
Christopher Seeger, lead plaintiff counsel in the New Jersey Vioxx cases and co-lead counsel in the federal multidistrict litigation, never dealt directly with Frazier but “did always have the sense” that outside lawyers “were getting marching orders from him.”
Seeger, of Seeger Weiss in New York, says Frazier “deserves credit for his guts and conviction.”
“I can praise him for his toughness,” Seeger says. “I think he was able to convince the plaintiffs’ bar that it was going to be a long, hard, very expensive fight.”
His only criticism is that Frazier could have been quicker to approve settlement discussions. “I don’t know if he needed 18 trials to really figure out what was going on,” Seeger adds.
In 2007, when Merck wanted to promote Frazier to executive vice president and president of the global human health department, a nonlegal role, he initially resisted because he wanted to see the Vioxx litigation through to the end.
He did make the move, and he became Merck’s president in May 2010, CEO in January 2011 and board president that December.
It’s been a remarkable ascension for the 58-year-old Frazier, who, along with three siblings, was reared in Philadelphia by a single father who worked as a janitor for United Parcel Service and stressed the importance of education.
Frazier entered Penn State University at the age of 16, and graduated from Harvard Law School in 1978.
The culture shock he had experienced as an African-American in college and law school was even more intense at Drinker Biddle & Reath, the white-shoe Philadelphia firm he joined upon graduation. Frazier said in a 2002 interview with The Minority Law Journal, an ALM publication, that at Drinker he focused exclusively on his work and mostly kept to himself — a tack that earned him an average review in his second year with the firm. That befuddled and discouraged Frazier — always a top achiever — and prompted him to seek a position as an assistant U.S. attorney.
He was talked out of the move by Drinker partner Melvin Breaux, the firm’s first black lawyer, who advised him to embrace the social aspect of lawyering and overcome any racial barriers, perceived or real. Frazier took that advice, earned better reviews and made partner. He ultimately became the point person for Merck, a firm client.
Merck hired him away from Drinker in 1992, making him general counsel of a division, Astra Merck Group. Frazier became vice president of public affairs in 1994, assistant general counsel in 1997 and general counsel and senior vice president in 1999, overseeing all legal and public affairs functions.
In 2002, Frazier was one of just 14 black general counsel among Fortune 500 companies.
As the company’s top executive, Frazier has prioritized research and innovation.
“Merck’s mission is to discover, develop and provide innovative products and services that save and improve lives around the world,” he said last week. “It is both a great privilege and a great responsibility to be in the health-care industry, and Merck’s people remain focused on tackling some of health-care’s most daunting challenges. By continuing to invest in the discovery and development of medicines and vaccines, we believe Merck can have a profound impact on people’s lives for years to come.”
Pro Bono Record
Aside from his work as in-house counsel, Frazier has demonstrated a commitment to pro bono, dating back to his days at Drinker.
While at the firm, he spent four consecutive summer sabbaticals teaching trial advocacy in South Africa, during apartheid’s last years and beyond.
He also represented Bo Cochran, an Alabama death-row defendant who was wrongfully convicted of murder and ultimately acquitted in 1996. He carried the Cochran case from Drinker to Merck, whose administrators were very supportive of his pro bono efforts.
Frazier wrote in a December 2000 article for Corporate Counsel, another ALM publication, that in-house lawyers, “[l]ike our counterparts in private and public practice settings … share a responsibility to promote justice for all.”
“Before joining Merck, I was concerned that going in-house might unduly restrict my activities as a lawyer,” he added. “The opposite seems to be true. To my delight, I have found that I could be both a good in-house counsel and an active pro bono lawyer.”
Frazier has been a proponent of the company’s robust pro bono program. When Merck received a Law Journal Litigation Department of the Year award in 2012 for pro bono and community work, program chief Marc Daniel credited Frazier with being a strong supporter.
Even after Vioxx, Frazier remained in the news.
In 2011, he was chosen by his fellow Penn State trustees to head a special committee to investigate university policy and procedure in the wake of the child-sex-abuse scandal surrounding assistant football coach Jerry Sandusky.
Frazier and the board picked former FBI director and federal judge Louis Freeh, of Freeh Sporkin & Sullivan, as a special investigator.
“No one — no one — is above scrutiny,” including administrators and “every member of our board of trustees,” he said at the time.
The Law Journal‘s lifetime achievement award to Frazier will be given at a reception at The Newark Club in Newark on Nov. 7. •