In re Vioxx Products Liability Litigation

• Citation: 501 F.Supp.2d 789
• Decision Date: 14 August 2007
• Docket Number: MDL No. 1657.
• Parties: In re VIOXX PRODUCTS LIABILITY LITIGATION.
• Court: U.S. District Court — Eastern District of Louisiana

501 F.Supp.2d 789

In re VIOXX PRODUCTS LIABILITY LITIGATION.

MDL No. 1657.

United States District Court, E.D. Louisiana.

August 14, 2007.

As Revised September 4, 2007.

Elisabeth French, Pittman, Hooks, Dutton, Dirby & Hellums, Birmingham, AL, Russ M. Herman, Leonard A. Davis, Herman, Herman, Katz & Cotlar, LLP, New Orleans, LA, for Plaintiff.

Phillip A. Wittmann, Stone Pigman Walther Wittmann, LLC, New Orleans, LA, for Defendant.

ORDER & REASONS

FALLON, District Judge.

THIS DOCUMENT RELATES TO ALL CASES

Before the Court are Special Master Paul R. Rice's Report and Recommendations (Rec. Does. 11566 & 11882) on a representative sampling of documents as to which Merck & Co., Inc. has asserted privilege in this multidistrict litigation ("MDL"), and Merck's Motions to Adopt in Part the Special Master's Report and Recommendations and Merck's Objections Thereto (Rec. Does. 11729 & 12020), which have been filed under seal.

This discovery dispute has dragged on for over a year and at times has seemed hopelessly endless. Although Merck has produced over two million documents in this MDL, the company has also asserted attorney-client privilege as to approximately 30,000 documents which it contends need not be produced. The majority of the withheld documents are print-outs of electronic communications, primarily internal company e-mails and attachments. Following an initial individualized review by the Court of every single withheld document, and a subsequent decision by the United States Court of Appeals for the Fifth Circuit, it is the Court's hope that a detailed expert analysis of a representative sample of these documents can potentially resolve all of Merck's privilege claims and put an end to a time consuming and expensive saga that has spiraled out of control in this case. Because the administrative and organizational travails that this Court has experienced are sure to recur with increasing regularity in similar cases, particularly at this time, at the dawn of the age of electronic discovery, and because the sample resolution process ultimately employed suggests that all hope may not be lost, the Court will relate this matter in considerable detail.

I. BACKGROUND

This multidistrict products liability litigation involves the prescription drug Vioxx, known generically as Rofecoxib. Merck, a New Jersey corporation, researched, designed, manufactured, marketed, and distributed Vioxx to relieve pain and inflammation resulting from osteoarthritis, rheumatoid arthritis, menstrual pain, and migraine headaches. On May 20, 1999, the Food and Drug Administration approved Vioxx for sale in the United States. Vioxx remained available to the public until September 30, 2004, at which time Merck withdrew it from the market when data from a clinical trial indicated that the use of Vioxx increased the risk of cardiovascular thrombotic events such as myocardial infarctions (heart attacks) and ischemic strokes.¹

Thereafter, thousands of individual suits and numerous class actions were filed against Merck in state and federal courts throughout the country alleging various products liability, tort, failure-to-warn, fraud, and warranty claims. It is estimated that 105 million prescriptions for Vioxx were written in the United States between May 20, 1999 and September 30, 2004. Based on this estimate, it is thought that approximately 20 million patients have taken Vioxx in the United States. On February 16, 2005, the Judicial Panel on Multidistrict Litigation ("JPML") conferred multidistrict litigation status on Vioxx lawsuits filed in federal court and transferred all such cases to this Court to coordinate discovery and to consolidate pretrial matters pursuant to 28 U.S.C. § 1407. See 360 F.Supp.2d 1352.² Shortly thereafter, the Court appointed committees of counsel to represent the parties and discovery in this litigation commenced.

Discovery has progressed simultaneously on two parallel tracks in this multidistrict litigation. First, the Plaintiffs' Steering Committee ("PSC") and the Defendants' Steering Committee ("DSC") have been charged with initiating; conducting, and coordinating all non-case-specific discovery. In this regard, the PSC has established and organized a document depository to house materials produced by Merck and has made these materials available to plaintiffs' counsel in individual cases. Second, in an effort to streamline case-specific discovery in thousands of individual cases, the Court has required every plaintiff who alleges a cardiovascular injury to submit to Merck both a Plaintiff Profile Form, which contains certain biographical and medical information, and authorizations for the release of medical records. Upon receipt of these materials, Merck is then required to provide a Merck Profile Form, which discloses contacts Merck has had with plaintiffs' doctors and any other relevant information Merck may have about individual plaintiffs.

Although this MDL was constituted in early 2005, many cases involving similar claims had been previously filed in state courts throughout the country, including in Louisiana. Some of these cases had been pending in state court for several years prior to the creation of this MDL, and case-specific discovery was essentially completed in some instances. With the consent of the parties, several of these cases were re-filed directly into this MDL so that bellwether trials could also commence immediately. Initially, the PSC and DSC were each permitted to designate for trial five bellwether cases involving myocardial infarctions in which case-specific discovery was complete. Each side was given two veto strikes. The remaining cases were then set for trial on a rotating basis, starting with one of the plaintiffs' selections. To date, the Court has conducted six bellwether trials (in five individual cases).³

Meanwhile, non-case-specific discovery continued. On August 22, 2005, in response to a PSC request for production, Merck asserted attorney-client privilege on a large number of documents and provided the PSC with its first MDL privilege log. A revised privilege log was provided on November 4, 2005. Shortly thereafter, the Court ordered Merck to submit for in camera review all documents as to which it claimed privilege. See Rec. Doc. 1337. In response to that Order, Merck delivered 81 boxes to the Court containing approximately 30,000 documents, amounting to nearly 500,000 pages, as to which privilege was asserted. The documents were not categorized or grouped together in any logical or organized fashion. Thus, the Court proceeded to review each document individually. Throughout April of 2006, the Court went through each box and removed those documents that it felt were privileged and then instructed the parties to confer on the method by which the PSC would receive and/or copy the remaining non-privileged documents.

Merck sought review of the Court's privilege rulings via a petition for a writ of mandamus. On May 26, 2006, the United States Court of Appeals for the Fifth Circuit declined to issue a writ on jurisdictional grounds, but suggested that this Court (or its designee) re-examine 2,000 representative documents, that Merck would select, pursuant to a different review protocol. See In re Vioxx Prods. Liab. Litig., 2006 WL 1726675 (5th Cir. May 26, 2006). The Fifth Circuit did not rule on the merits of any individual privilege ruling, but simply concluded that this Court should devise a new procedure for reviewing the representative documents. Id. at *3.

Pursuant to the Fifth Circuit's direction, Merck provided this Court with 10 additional boxes containing approximately 2,000 documents that Merck believes are representative of all the documents in question. On April 25, 2007, after giving notice and allowing the parties an opportunity to be heard, the Court appointed Professor Paul R. Rice of American University's Washington College of Law as Special Master pursuant to Rule 53 of the Federal Rules of Civil Procedure. See Rec. Doc. 10872. The Court requested that Special Master Rice review the 2,000 representative documents, as well as approximately 600 additional documents selected by the PSC and believed to be relevant to upcoming trial preservation depositions, and make recommendations as to whether or not Merck's claims of privilege should be upheld. On May 1, 2007, the Court also appointed Mr. Brent B. Barriere of the firm Phelps Dunbar LLP as Special Counsel to assist the Special Master by providing logistical support and local facilities and by managing the Special Master's operating account. See Rec. Doc. 10908. The Court confidently made both of these appointments based on the considerable experience these individuals were able to bring to this dispute and in light of their impeccable reputations.⁴

Professor Rice graduated from the West Virginia University College of Law in 1968 with high honors and then clerked for the Honorable Herbert S. Boreman at the United States Court of Appeals for the Fourth Circuit. Following his clerkship, he returned to Yale Law School and received an LL.M. in 1972, and has been teaching at American University's Washington College of Law since 1974. Professor Rice is widely recognized as a leading scholar on the law of evidence, and particularly attorney-client privilege, having published several respected treatises and numerous articles and papers on the topic. Professor Rice also has considerable practical experience, having served as Special Master or Special Counsel in the following complex cases: from 1978 to 1981 he served as Special Master in United States v. AT & T, No. 74-1698 (D.D.C.); from 1981 to 1983 he served as Special Master in In re Amoxicillin Patent & Antitrust Litigation, MDL No. 328 (D.D.C.); from 1981 to 1982 he served as Special Master in Southern Pacific Communication Co. v. AT & T, No. 78-0545 (D.D.C.); and, from 2002 to 2004 he served as Special Counsel in In re Microsoft Corp. Antitrust...