Recent Development by Paul Trapani
Doctors wrote approximately 105 million prescriptions of Vioxx for approximately twenty million patients before the public learned that the pain reliever increased the risk of cardiovascular events. Clinical trials indicated that Vioxx, the prescription drug heralded to ease pain resulting from osteoarthritis, rheumatoid arthritis, and menstruation, increased the risk of cardiovascular thrombotic events such as heart attacks and ischemic strokes. After Merck, the manufacturer of Vioxx, withdrew the drug from the market, plaintiffs from across the United States filed thousands of individual suits and numerous class actions against Merck “in state and federal courts throughout the country alleging various products liability, tort, failure-to-warn, fraud, and warranty claims.” In an effort to promote the just and efficient handling of the actions, the Judicial Panel of Multidistrict Litigation (JPML) transferred all federal Vioxx suits to the United States District Court for the Eastern District of Louisiana to coordinate discovery and pretrial matters.
The district court undertook discovery via two parallel methods, namely case-specific and non-case-specific discovery. The court charged the Plaintiffs' Steering Committee (PSC) and the Defendants' Steering Committee (DSC) with initiating and conducting the non-case-specific discovery. In response to the PSC's request for production, Merck asserted attorney-client privilege on approximately 30,000 documents, amounting to nearly 500,000 pages. The court ordered Merck to submit the documents for in camera review. However, upon realizing that Merck failed to categorize properly its documents for the court, the district court examined each document individually and removed those documents that it found to be privileged. Merck filed a writ of mandamus seeking review of the district court's ruling on Merck's attorney-client privilege claim. The United States Court of Appeals for the Fifth Circuit directed the district court to reexamine a sampling of 2000 representative documents in an effort to better review the documents. Heeding the Fifth Circuit's advice, the district court ordered Merck to submit 2000 documents that Merck believed were representative of the documents in question. The court also appointed a Special Master to review the representative documents, along with 600 additional documents selected by the PSC. The Special Master's Report (Report) provided general guidelines under which the court could determine the discoverability of certain documents. The court found that the sampling method was an adequate procedural means of lessening the burden of discovery and evaluating the presence of attorney-client privilege. The United States District Court for the Eastern District of Louisiana held that where there was no objection from Merck, the Report's recommendations should be adopted and that where Merck did object, the Report's recommendations should be adopted or rejected on an individual basis. In re Vioxx Products Liability Litigation, 501 F. Supp. 2d 789, 815-16 (E.D. La. 2007).
About the Author
Paul Trapani. J.D. candidate 2009, Tulane University School of Law; B.A. 2003, Tulane University.
Citation
82 Tul. L. Rev. 2517 (2008)