NEW YORK, Oct 31 (Reuters) - A string of courtroom
victories by drugmakers in key product-liability trials could
be a signal that these and other companies can beat back claims
in upcoming cases against them.
AstraZeneca Plc, Merck & Co and Pfizer Inc are among the
companies to win closely watched bellwether cases in recent
Bellwether cases are sample trials ordered by judges in
situations where hundreds or thousands of plaintiffs have
similar claims consolidated before a single state or federal
court. Typically, a judge chooses a few individual lawsuits to
proceed ahead of the rest. As their name suggests, the result
of these battles can be predictive.
A win by the defendant might prompt settlements or spur
plaintiffs to drop other cases.
Upcoming test trials include the first in federal court
against Bayer AG for allegations that its Yaz/Yasmin
birth-control pill caused heart attacks and other medical
problems. An Illinois federal court set the trial for January.
Beyond the drug industry, a California federal court set a
February trial date for a bellwether case against Toyota Motor Corp involving allegations of unintended acceleration.
Plaintiffs in such cases used to have more say in picking
which lawsuits went to trial first. But over the past decade,
influence has become more evenly split with defendants.
Today, a judge commonly asks both sides to choose a handful
of cases that would go to trial first and then adds several
others to the pool. Cases are tried one after another, rotating
from one party's choice to the next.
The shift has made it tougher for those suing big
corporations, since plaintiffs already bear the burden of
proof, their advocates say.
The defense also has an advantage, they argue, because the
bellwether process can drag on for years and defendants have
become adept at slowing down individual trials by filing
procedural requests with the courts.
This favors defendants, who typically can afford to
bankroll protracted litigation, said Paul Pennock of Weitz &
Luxenberg, a plaintiff's attorney.
"There is a learning curve -- you learn a great deal on the
job in each successive trial," Pennock said. "Defendants of
multibillion-dollar corporations are far better financed than
plaintiffs to endure it."
Judges often limit admissible evidence, said Pennock, who
represented plaintiffs in lawsuits claiming AstraZeneca
anti-psychotic drug Seroquel caused diabetes. By excluding key
emails, he said, a New Jersey state judge "gutted" his 2010
liability case against the drugmaker.
Earlier this month, plaintiffs lost the fourth of five
bellwether trials held so far against Merck & Co <MRK.N> in New
York federal court over claims that the company's Fosamax
osteoporosis treatment causes jaw damage.
A lawyer for the plaintiffs says he was hamstrung because
U.S. District Judge John Keenan allowed only cases filed before
January 2005 into the first phase of the bellwether trials.
After that date, U.S. drug regulators had ordered that Merck
include warning labels on the drug about jaw-bone problems.
"I've been trying these cases with one arm tied behind my
back and another holding a bag of concrete," said Timothy
O'Brien of law firm Papantonio Thomas Mitchell Echsner &
O'Brien said he plans to appeal the most recent jury
verdict, that there was insufficient evidence that Fosamax
caused jaw-bone degradation in a 66-year-old Florida woman.
Merck still faces more than 1,600 related Fosamax lawsuits
filed across the United States. The next bellwether trial is
set for February, followed by another in May.
Merck, which did not respond to a request for comment, has
a lot of experience with bellwether trials. Litigation over its
Vioxx painkiller, which tens of thousands of consumers said
caused heart attacks, strokes or other problems, was a prime
example of the bellwether system at work.
After prevailing in all but one of five federal
bellwethers over Vioxx, Merck agreed in 2007 to settle most of
the cases for $4.85 billion, far below earlier estimates for
total company liability of as much as $50 billion.
The lead counsel for Merck in the Vioxx litigation, Philip
Beck of law firm Bartlit Beck, acknowledged that defendants in
test trials have fared better than plaintiffs in recent years.
"Judges are more likely to say, 'If we are going to have a
series of bellwether cases, we want them to be representative
instead of simply plaintiff-friendly,'" Beck said.
Pfizer has also won some big cases. These include two of
three bellwethers in 2009 and 2010 against plaintiffs who
claimed an increased risk of suicide from its off-label
epilepsy treatment, Neurontin.
In 2010, the company settled the third and final test case
in the litigation, which was consolidated before a federal
court in Massachusetts.
The victories caused scores of plaintiffs to drop their
cases, said Pfizer attorney Mark Cheffo, a partner at Skadden,
Arps, Slate, Meagher & Flom.
Defendants do not win all bellwethers. In lawsuits over
alleged rice crop contamination, bellwether losses led Bayer to
a $750 million settlement with farmers in 2009. Bellwether
trials in lawsuits over Chinese drywall have gone entirely in
favor of the plaintiffs, who had widely been expected to win
There may be no fair method of selecting bellwethers when
lawyers are involved in choosing them, experts say. But
randomly selecting cases from a representative sample could
eliminate bias, said Alexandra Lahav, a professor at the
University of Connecticut School of Law and an expert in
Even when one side has won a string of trials, such as in
the Fosamax bellwethers, those outcomes can't predict how other
cases will unfold, she said. "No statistical result is
defensible if the sampling isn't random."
(Reporting by Moira Herbst)
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