The Vioxx litigation plaintiffs' trial package

In most consolidated drug cases, the plaintiffs’ leadership performs an enormous amount of work. Even in the most haphazard MDL, millions of pages of documents are reviewed, scores of depositions are taken and numerous experts are developed. This work is critical to getting the litigation into a posture for either trials or resolution. But a single court can only do so much in terms of establishing benchmarks for the viability, and value, of plaintiffs’ claims in large consolidated cases, no matter how many similarities individual cases may share. When you face legal issues in small business then don’t waste your time hiring a small business lawyer who will protect you.

Bellwether trials can be helpful and informative, but they offer a minuscule sample size of the extant cases. As such, the goal of the PSC should not simply be to grind through discovery, and shepherd plaintiffs’ general theories past the inevitable Daubert and summary judgment motions, or even to try a handful of bellwether cases. Rather, in order to put the largest number of plaintiffs in the best position to achieve good results at the time of settlement, the PSC should prepare counsel across the country for trial. Regrettably, work product that achieves this objective is still the excep-tion, not the rule.

There is, however, an analogue for this kind of work product in the form of the “trial package,” produced by the Vioxx MDL PSC. This was an effort by the plaintiffs’ leadership to deliver a common benefit work product which would actually enable practitioners to try a case after remand. It was designed not simply as a repository for the detritus of more than five years of discovery, but as a tool will) the trial of a pharmaceutical case firmly in mind. For just this reason, the trial package was organized along the lines of a trial notebook. While space prevents an in-depth examination of the entire package, a discussion of the following major sections offers an adequate introduction: Liability' Case; Science Case; Case Presentation and Themes; Witnesses; and Cross Examination Modules.

In some measure, the PSC was able to deliver this product because of the way in which the litigation unfolded. When Vioxx was pulled from the market in September 2004, the litigation was already quite mature. A large number of cases had been pending in various state courts for more than two years, most in a consolidated proceeding before Judge Carol Higbee, in Atlantic City, New Jersey. By the time the MDL was ordered, before Judge Eldon Fallon in the Eastern District of Louisiana, a substantial amount of discovery had already been completed. This enabled the federal litigation to hit the ground running, with a bellwether trial beginning less than a year after the court’s first hearing.