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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. 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 judg- ment 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 common benefit work product which would actual- ly 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 with 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 pack- age, 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 sub- stantial amount of discovery had already been completed. This enabled the feder- al litigation to hit the ground running, with a bellwether trial beginning less than a year after the court’s first hearing. (See In re Vioxx Products Liab. Litig., MDL 1657, 2011 WL 3563004 (E.D. La. Aug. 9, 2011).) • Liability Case The liability section provided an
overview of the Vioxx case, taking the user through most of the main themes, including: the development of the drug, as well as others in the same class; the competitive pressure that motivated Merck, the drug’s manufacturer; the company’s marketing blitz following FDA approval; the publication of key studies demonstrating the risks of Vioxx; and, finally, the withdrawal of the drug from the market. The liability section itself contained the following subsections: • Liability Playbook The playbook provided a narrative
summary of the Vioxx liability case, with citations to exhibits, deposition testimony and relevant medical literature. The play- book functioned as an introduction to the case, comprehensively addressing all major issues, with specific references to evidence, including documents, deposi- tion and medical literature. This enabled attorneys with limited previous exposure
See Tide, Page 32 30 — The Advocate Magazine JANUARY 2012
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