Saturday, November 25, 2006

A Vioxx aside: Master MDL complaints

On Wednesday, November 22, Judge Fallon issued his decision denying class certification for the Vioxx personal injury cases. That decision fits squarely in the mainstream of current class action jurisprudence in pharmaceutical product liability cases. If Baycol, Paxil, Prempro, Propulsid, and Rezulin, for example, could not be certified for classwide treatment, then it's hard to say that the result in Vioxx should have been different.

Judge Fallon does, however, enter the fray on a more obscure issue that has many litigators in multidistrict litigation proceedings scratching their heads: What is the precise effect of filing a "master complaint" in an MDL? If a product liability complaint is filed in federal court in, say, New York, and the MDL Panel then transfers the case to, say, Chicago, everyone knows the rules. The MDL transferee court (in Chicago) would apply New York choice of law rules to the New York complaint to determine the applicable law. After the MDL transferee court concluded the pretrial proceedings, the transferee court would ask the MDL Panel to remand the New York case back to a New York federal court for trial.

Suppose, however, the MDL transferee court orders the plaintiffs' steering committee to file a "master complaint" in the Chicago federal court. The master complaint has then been filed in an Illinois court, and Illinois choice of law rules should apply to determine the applicable law. Moreover, at the conclusion of pretrial proceedings, there is no longer a pending New York case. Does that mean that the case is not remanded, and the Chicago judge presides at trial? Is that really what the court had in mind when it ordered the filing of a master complaint? And can Lexecon (and its requirement of remand for trial) really be evaded so easily?

The case law on this issue is scant, and there appears to be no commentary on point. On the one hand, in In re Bridgestone/Firestone, Inc. Tires Prods. Liab. Litig., 155 F. Supp. 2d 1069, 1078 (S.D. Ind. 2001), the MDL transferee court in Indiana applied Indiana choice of law rules to pick the substantive law applicable to a master complaint filed in Indiana. On the other hand, in In re Propulsid Prods. Liab. Litig., 208 F.R.D. 133, 140-41 (E.D. La. 2002), the court applied the opposite rule, applying the choice of law rules of the court where the complaint had originally been filed, rather than Louisiana choice of law rules, to analyze a master complaint. Vioxx now joins the fray, again applying home state choice of law rules (here, New Jersey), rather than Louisiana choice of law rules, to select the substantive law governing a master complaint filed in Louisiana. See In re Vioxx Prods. Liab. Litig., MDL No. 1657, Case No. 2:05-md-01657-EEF-DEK, slip op. at 7 (E.D. La. Nov. 2, 2006).

Frankly, we could live with either rule, but it would sure be nice to know what the rule is. When plaintiffs have filed putative class actions pleading state law claims in 25 different states, the MDL Panel coordinates all of those case in one court, and there's then a single master complaint filed in the MDL transferee court in, say, Dallas, just what should we move to dismiss? The causes of action pleaded in the master complaint? Under Texas choice of law rules? Or is the master complaint a mere administrative convenience, and defendants must move to dismiss all of the causes of action pleaded in the 25 underlying complaints under the choice of law rules of 25 different states?

The confusion doesn't stop there. When the pretrial proceedings are over, where will the case (or is it "cases") be tried? In Dallas, because that's where plaintiffs filed the master complaint, so there's no need to remand the case to a different court for trial? Or are the consolidated master proceedings somehow broken up and remanded back to 25 different courts? If so, the process has subverted much of the efficiency that the MDL process was meant to engender.

As we said, we can operate in whatever procedural environment the courts choose to create (at least on this score). But it would sure be helpful if someone thought this through and devised an elegant solution, which the courts could then adopt and give clear guidance to those of us who toil in the litigation fields.

4 comments:

dennisharrison said...

I have a bone/spine repair lawsuit filed against Merck (Google "Vioxx bone repair", also "Vioxx Dennis Harrison lawsuit" (no quotes needed).

Merck moved it to NY Federal District, so it could then move it to the MDL.

The PSC has said it won't represent me - and it said so very adamantly.

That is disturbing, the PSC is supposed to by charter, that is one of the lynchpins of the MDL process.

I am thus trying to escape this via objecting it and writing the appropriate motion and brief. It is to be reviewed in late January.

I am "pro se" and am learning on the go. Lawyers would not take the case - because the legal profession has been duped, (allegedly) by Merck to concentrate ONLY on heart/CV casis (which are so, so easy to file via cut and paste of the MDL template). Then the lawyers across the country just wait and see what happens (oversimplified, but I think the essential truth).

I am going in front of the MDL and PSC in mid December to address my case issue(s) with the PSC/MDL, the fact that the bone/spine repair issues have been ignored (in spite of a great deal of independent research). It is a disgrace that the bone/spine issue(s) of Cox-2 inhibitors (even besides Vioxx) are just not being addressed by the legal firms across the country, the drug firms, and the bumbling FDA.

Though I am a pro se litigant, I feel that I am making substantial headway, and am very, very confident in my evidence and my eventual success in the case. I have recently decided to work to make this even a public awareness and benefit issue, and can even hypothisize how by not making the public and the legal field aware of the vioxx bone/spine repair issue(s) how it might even be construed as age discrimination.

I have a quite intersting case, if you wish to talk about it or know any legal reps that would like to. I have nothing to hide. The truth trumps all, and I speak the truth!

Dennis Harrison
Cementon, NY
badbonehealing@hvc.rr.com
badbones@hvc.rr.com
badbonehealing.wordpress.com

dennisharrison said...

Think the PSC (Plaintiff Steering Committee ONLY has your (Plaintiff’s) welfare in mind? That may be their charter, but not so quick - please read on. Of course they have some well meaning intents, but fall short in a very important area – that of aggressively pursuing ALL significant cases (in volume – say in the bone/spine issue about 10,000 people possibly are not being represented at all!). In response to some who feel that the Plaintiff Steering Committee has a grip on all of the Vex issues and that the PSC is fighting for anyone with a valid claim. Think again!

Read on if you would like to get some feeling for how the non-heart/CV vioxx issues are considered – more of a problem to get around, than a real, significant and high volume problem that needs to be aggressively pursued to protect the problem. Also, note that the issue of “causation”, a potential hurdle in many heart cases, seems to be quite more direct and easier to prove with the bone/spine issue(s). It seems, right now, that it is almost me against the world – I need some help both to bolster my confidence, and so that the public can help me help them! It is difficult ground to break, and the public's help is needed in demanding that non heart/CV issues be looked at seriously both by Merck AND the legal field!

Not only do I need the public's help, as I am going it alone (see below), you may have a similar issue and are being denied proper justice - possibly bordering on a potential civil rights issue. Something is fishy here.... In response to a BLOG I saw that was very thankful about the PSC taking the Vioxx issue and moving with it; unfortunately the writer was under quite of a misunderstanding. One, after reading it, may readily feel that the situation is being taken care of – SUCH IS NOT THE CASE! If you feel it is, you are under a grave misunderstanding. While it is good the PSC is representing litigants in Federal Cases, it is by law, not by choice of a group of legal firms who want to do the best for the public. So, yes – thanks to the PSC for the work very much in that representation; and some kudos are ok. But no kudos, yet, for really coming to grips with and representing the wider class of potential litigants (non heart/CV issues) and perhaps even inhibiting their ability to file a suit; (possibly - and maybe easily about 10,000 more lawsuits could be filed) that are not the standard, almost run of the mill HEART/CV cases. In this regard, at least so far, I feel that the PSC group, of which many people could be helped by non-heart/CV issue(s) deserves a failing grade on really reaching out to protect the consumer(s).

Read on.... Be aware that the PSC has not been all pure and gung ho towards helping Vioxx litigants. It seems to have narrowly defined its own scope (one questions why they are allowed to do that...) and will not represent basically anything except the heart and CV cases!

Amazing – yes, Unfair – yes, True – (alleged) YES.

I wish I could have been so selective in picking my business cases, etc. when I was working...This means that individuals who get forced into Federal Courts by Merck (under the guise of being very similar cases in nature and impact(s), and who are supposed to have their pre-trial needs (including DISCOVERY) worked through the PSC - end up in nowhere land. This may, or may not, be something that those that should know better do, and are not reacting appropriately!

Instead of the State courts that the litigants remitted their initial lawsuits in, they can (as I did) find themselves in a much strange and harsher world, without the support that the PSC is SUPPOSED to provide by concept, charter and definition. For example, my case, involving bones and spine that were damaged because of bad (and non-existing) healing, (allegedly) because of Vioxx, is apparently repeated possibly in the ten thousand ranges across the country. Unfortunately, they are not represented by legal counsel - in my case, I did file a lawsuit by myself to protect my rights – unfortunately, vitually no-one else with bone/spine issues even realized it may have (allegedly) been Vioxx and that they had the right to file suit; I blame this on all the hoopla and red-herrings from the heart/CV publicity; thus Merck may be getting away with tens of thousands of additional, non-heart/CV cases).

Even though apparently numerous, these types of cases are being denied acknowledgement and representation by the general legal industry across the country, unfortunately influenced by the PSC, and the methods and procedures of the MDL, which encourage heart/CV cases, ironically at the expense of non-heart/CV cases.

My case, filed in NY State Supreme Court (Ulster County), for example was put into the PSC/MDL Federal arena by Merck. I did not ask for it to be. Incredibly...the PSC has indicated, strongly, they will NOT represent my DISCOVERY needs - which is why, in theory I was placed there! It just does not seem right, and I need to hard to repair this injustice! It makes no sense, and the PSC is not meeting its charter of meeting litigant’s pre-trial needs that have been placed into the Federal arena (from State). I am quite wary of why this is the case, and it raises some disturbing issues about the PSC, its true intent, and its desire to really represent as many valid cases as it can. Something is just not right! A VERY MAJOR problem from the PSC's view of the world and Merck is that their attitude has spread across the country, to all legal establishments. Their Red-Herring approach has worked!

Merck has been successful in shifting public and legal focus on the heart/CV cases and the PSC has seemingly gone along with that! This is to the DETRIMENT OF, as I have said, of possibly (maybe more) 10,000 cases across the country. . I will not speculate about potential relationships of the Federal pre-trial representations and the legal field in the “front” lines with Merck, but you may read between the line(s) if you wish!

The problem, with the legal firms across the country is they are following the PSC's lead! They are filing the “easy to file” lawsuits and hoping for a class settlement. They will drop their clients if it gets too close for comfort for them (i.e. the court cases are tougher than they would like), but if there is settlement(s), they may gain a LOT with such little effort. Wouldn’t you rather file a heart/CV case instead of a much harder to file and win bone/spine repair case (which also has more at risk and is not as easy to gather evidence… The attempt "to streamline and conform rulings" has instead resulted in lawyers filing many more lawsuits on the heart/CSV cases (because they are easy - just use one of the many templates for heart/CSV cases that are on the PSC Web Site - and voila, instant lawsuit). Wonder why there are so many lawsuits - don't wonder anymore... Furthermore, as Merck picks and choses the best it can, it will cherry pick the poor heart/CV cases that should not have been filed in the first cases. As you can see, some of these early cases are just ridiculous to file suit over, and thereby provide Merck with an easier path of public sympathy and future jurors. Add this to their “institutional advertisement”, and it is obvious Merck is running their defense like a business, while the Plaintiff’s, overall, are running their on the cheap without much, quite frankly, business and public “marketing” efforts that come anywhere near the well oiled Merck machine. Don’t blame Merck – Merck is only doing what it should as a corporate entity trying to survive and maximize both short and long term benefits. Possibly, however, blame the aggressiveness of the legal Plaintiff side, especially Federal. The State lawsuits seem to be much more aggressive and run like a business as they should be. THAT IS WHY (allegedly) Merck wants to keep as many cases in the Federal arena as possible (in addition to (allegedly) dumping a lot of unrelated (to the heart/CV) cases in no-where land, unable to get proper pre-trial proceedings such as DISCOVERY.

Furthermore, if you feel you have another issue besides heart/CSV (like mine for example - there were NO warnings, consumer OR physician education even though independent evidence was formal and substantial!) and just can't get legal support - no longer should you wonder why. It is much easier, less costly, less risky, etc. to just cut and paste individual’s names into a "template". That is why, I feel, that there are possibly too many questionable heart/CV lawsuits out there - they are so easy (less time, less risk, less cost, etc.) to do!

Easy, inexpensive, and risk-free (virtually) begets many, many lawsuits that are perhaps questionable. AND, get this, since Merck and the PSC take turns picking cases, Merck picks really poor cases (which in my view should not have been even submitted), wins those and then looks to the public (and future jurors) for future sympathy. Incredible, just incredible!

It is no co-incidence that Merck and the Plaintiff cases are about 50-50 since both sides are taking turns picking Federal cases. The main problem is that Merck picks really poor Plaintiff cases that make them look more innocent than perhaps (allegedly) they are. Public opinion and sway are the goals here, and unless the PSC gets more aggressive and business like, Merck will end up on the better side of what they should not, and cases like mine will fall by the wayside by either not being accepted by the legal community (and you have to have some gumption to do so yourself) or, as seems to be the case, often swept under the rug by wrongly placing the cases into the Federal Court System MDL's without the PSC support they are supposed to get!

If you feel that you are unjustly being denied legal support by the legal firm, why not email me (badbones@hvc.rr.com). I cannot offer legal or medical professional advice, but perhaps can lend some useful info to you based upon my experience and at least, from a consumer level give you some thoughts. Furthermore, it would help me make the broader case of many, many potential (and valid) litigants being left out in the cold, never knowing what hit them.
The more of us that can pry open this can of worms, the more likely the public will receive its fair due. I don't know about you, but as I spent almost a year in hospitals and nursing homes, staring out windows and wondering when my bones would really heal so I could move on, I had no idea of this. And since it was me, not a lawyer who refuses to take my case, or a legal system that may mean well but is in essence and perhaps inadvertently sweeping too many non-heart/CV cases under the rug - that suffered so long, and still does.

If you are in a similar situation, I would advise (strongly) you to keep pushing and not giving up because a lawyer seems to be questioning you when in fact, they most likely only want the heart/CV cases. Document all the times that you are rejected by a lawyer. You are being (allegedly) ram-rodded and need to fight for your rights here. Dig in and make your case. Together we can do it!

Also, be aware, that there may be some civil rights issues here in either preventing, and discouraging non-heart/CV issue(s), which relate to denying individuals without heart/CV issues the right to sue. This, if true, would only be to the benefit of the very large (allegedly) number of individuals who have not been treated fairly.

Dennis Harrison
Cementon, NY
badbones@hvc.rr.com
badbonehealing@hvc.rr.com

BLOG just started: http://badbonehealing.wordpress.com/



<4000 characters
Dennis HarrisonSaugerties, NY Flag for Review 1 min ago Think the PSC (Plaintiff Steering Committee ONLY has your (Plaintiff’s) welfare in mind? That may be their charter, but not so quick!In response to some who feel that the Plaintiff Steering Committee has a grip on all of the Vioxx issues and that the PSC is fighting for anyone with a valid claim. Think again!Something is fishy here.... In response to a BLOG I saw that was very thankful about the PSC taking the Vioxx issue and moving with it; unfortunately they are under a misunderstanding. While it is good the PSC is representing litigants in Federal Cases, it is by law, not by choice of a group of legal firms. So, yes - thanks for the work very much in that representation; and some kudos are ok. But no kudos, yet for really representing the wider class of potential litigants and perhaps even inhibiting their ability to file a suit;(possibly - and maybe easily about 10,000 more lawsuits could be filed) that are not the standard, almost run of the mill HEART/CV cases. In this regard, at least so far, I feel that this PSC group deserves a failing grade on really reaching out to protect the consumer(s).Read on.... Be aware that the PSC has not been all pure and gung ho towards helping Vioxx litigants. It seems to have narrowly defined their own scope (one questions why they are allowed to do that...) and will not represent basically anything except the heart and CV cases. I wish I could have been so selective in picking my business cases, etc. when I was working...This means that individuals who get forced into Federal Courts by Merck - under the guise of being very similar, end up in nowhere land.Very, very unfortunately it seems that many (thousands!) cases are being denied acknowledgement and representation by the general legal industry across the country, unfortunately influenced by the PSC, and the methods and procedures of the MDL, which encourage heart/CV cases, ironically at the expense of non-heart/CV cases. My case, filed in NY State Supreme Court (Ulster County), for example was put into the PSC/MDL Federal arena by Merck. I did not ask for it to be. Incredibly...the PSC has indicated, strongly, they will NOT represent my DISCOVERY needs - which is why, in theory I was placed there! It just does not seem right, and I need to get it straight. It makes no sense, and the PSC is not meeting its charter of meeting litigant’s pre-trial needs that have been placed into the Federal arena (from State). I am quite wary of why this is the case, and it raises some disturbing issues about the PSC, its true intent, and its desire to really represent as many valid cases as it can. Something is just not right! A VERY MAJOR problem from the Pac’s view of the world and Merck is that their attitude has spread across the country, to all legal establishments.Merck has been successful in shifting public and legal focus on the heart/CV cases and the PSC has seemingly gone along with that! This is to the DETRIMENT OF, as I have said, of possibly (maybe more) 10,000 cases across the country.The problem, with the legal firms across the country is they are following the Pac’s lead. The attempt "to streamline and conform rulings" has instead resulted in lawyers filing many more lawsuits on the heart/CSV cases (because they are easy - just use one of the many templates for heart/CSV cases that are on the PSC Web Site - and voila, instant lawsuit). Wonder why there are so many lawsuits - don't wonder anymore...Dennis HarrisonCementon, NYbadbones@hvc.rr.combadbonehealing@hvc.rr.comBLOG just started: http://badbonehealing.wordpress.com/

Beck/Herrmann said...

We defend these cases, we don't bring them, so there's not a lot in your rant for us to respond to.

One thing we would say, however, is that it would be impossible for Merck or any other similarly situated defendant to "dupe" the "legal profession" (read: plaintiffs' bar) to do anything. The orientation of mass tort claims is determined by whatever the plaintiffs' bar chooses to advertise in its solicitations directed to the public. If the litigation isn't about your claims, blame the folks bringing the litigation, not the folks defending it.

badbonehealing said...

GOOD NEWS for VIOXX victims! The VIOXX Plaintiff Education Group (VPEG), against all odds - is alive and doing well! It now has 300 members, and we are really learning and helping each other. VPEG, has picked itself up by its own two feet, and accepted the task of informing and education sharing. Since, as VPEG has more than learned, most of its members counsel have not, could not, or wished not to help the average VPEG member with the needed information - the need to do was there, and VPEG tries to help fill the void of some questionable atty-client relationships (i.e. the “settlement: has caused much strain there…) The average VPEG member (vIOXX Plaintiff and victim) is now, finally “learning the score, on a whole range of items"
….
The vIOXX Plaintiff Education Group is a blog of almost 300 vIOXX victims who are Plaintiffs - with much to care and share over. It works hard to provide much information and education versus sharing. It also has several items, involving working "the issues" which suggest some active goals. The members are all respective of each other. You will find a great of sympathetic vIOXX victims that are the same boat as the average vIOXX litigant.
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VPEG has built a reputable infrastructure to share information, help educate each other, document retention, member communications, polling, holding important information to share, providing very useful links, and MORE! VPEG is the result of a very urgent need to get this infrastructure up and running in such a short time. So, so many vIOXX victims should learn what the average VPEG member has had the opportunity too.
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Feel free to check it out and join, nothing ventured, nothing gained. VPEG welcomes vIOXX victims that just wish information, wish to share, with to act, etc. - all are very welcome! It is not too late to keep up with this fast moving environment, and it may be one of the best things you have ever done in this very, very urgent time of the need for information and action.
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The link is:
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http://groups.yahoo.com/group/MerckSettlement/
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Sincerely
Dennis Harrison – badbonehealing@hvc.rr.com
M.B.A. - BGS
Catskill, NY
Vioxx Plaintiff
…..

p.s. - I am a Plaintiff, with a lawsuit of (alleged) bone and spine healing problems. Though not MI/heart - I have learned very, very, much from VPEG. We share our thoughts, and we look for the synergies between the injuries, let alone that we can't but help see similarities (alleged) with FOSAMAX, Vytorin, (potentially the ill fated ARCOXCIA (Vioxx by any other name?), Giardasil, …. can't help but notice the continuing array of problematic Merck "Products" and the cycles and patterns, as well as common items of our own 'DISCOVERY"...