Author’s note: Although this post was written yesterday, its publication was delayed for twenty-four hours by the earlier-scheduled guest post. I hope you don't mind.
It’s 7 a.m. in Pasadena, California. Since I’ve got two hours to kill before I’m supposed to meet my travel companions for our flight back to St. Louis, I've got plenty of time to write a post explaining why I'm here. Be warned in advance, however: this post might be long. If your time is limited, you should skip to the end, where I’m going to summarize the lessons of the trip in one single, pithy sentence. Though I haven’t written the sentence yet, I'm sure it will be pretty damn interesting.
Why am I in California? I was one of the 350 lawyers who attended the Mealey’s Vioxx conference on Tuesday at the Ritz-Carlton in Pasadena. This morning the sun’s out and the temperature’s a cool 55 degrees. This particular Ritz was designed as a Phoenix-style resort, probably long before there were any Phoenix-style resorts: lots of open space near the mountains with plenty of running water, mature trees, and wildlife. So many birds are yakking away right now I feel like I’m in the birdhouse at the St. Louis Zoo. There’s a squirrel right overhead, dangling from a branch as he tries to pry a berry off a tree.
I’m outside, by the way, sitting on my deck. My room at the Ritz has a deck, which will take a moment to explain.
When I booked my room, there was a little snafu: due to the "overwhelming demand," the block of rooms reserved for the Mealey's conference had sold out. It meant that I had to “upgrade” to a “suite,” but the suite turned out to be more like a house, which is set apart from the hotel in a group of other houses. It’s embarrassing to write about: I’ve got a full living room with a number of sofas, two bathrooms, and a fireplace. I’ve also got this deck, where I’m sitting right now surrounded by the offal of the past two days, placed there by my traveling companions and our guests: empty beer bottles, tiny mini-bar vodka bottles, a half-smoked cigar, a Red Bull container (the contents of which were consumed by Federalist No. 84, about which more later), and my notes from the conference, which I might start writing about in just a minute.
So that’s the setting this morning as I get ready to return to St. Louis. I've been pretty much stuck here at the Ritz for two days, although my traveling companions and I ventured into Pasadena for dinner on Monday and Tuesday nights. Our mistake was that we didn’t drive far enough. Originally, we had a plan to sneak away for some sightseeing yesterday afternoon (I saw that famous “Hollywood” sign in the mountains on the drive from the airport, for example, and Federalist No. 84 told us there was plenty to do in Santa Monica)—but our plans were dashed by something completely unexpected, which was that the Mealey’s Vioxx conference turned out to be exceptionally good and we didn’t want to leave.
And that’s pretty much the problem with this post. I was hoping to write something along the lines of Fear and Loathing in Pasadena, but it’s not to be. All the raucous merriment that happened on the trip took place in my giant room between sessions or after dinner, and none of the merriment was really all that raucous. On Monday night, we watched the football game. The rest of the time we engaged in boring lawyer-talk, with only occasional asides to talk about women in the manner of all men when there aren't any women around.
So what about the Vioxx conference? When I flipped on my hotel-room TV on Tuesday morning, here’s what I heard on CNBC (a rough rendition): "I'm live in Pasadena. Behind me, hundreds of lawyers are gathering for a conference where they'll discuss ways of suing Merck for injures they say were caused by Vioxx. Also attending the conference will be lawyers for Merck, who hope to size up their competition first-hand.”
It was a little over-the-top, but when I headed toward the main conference room, the scene was chaotic: various TV reporters and their crews were weaving in and out of the crowd to get quick stand-up interviews with various lawyers. I went for the coffee and pastries and snapped a few pictures. Just above, for example, you'll see my shot of defense lawyer Thomas Moore doing his best impersonation of a tort reformer. (The picture was taken with my new Canon PowerShot SD 200, a tiny little digital camera that fits in the palm of my hand. I don't think anyone noticed me taking pictures. Either that, or they thought I was just another reporter.)
The conference itself was informative. Lots of plaintiffs' lawyers already know various pieces of the Vioxx puzzle. Why would they want to share what they've learned with other plaintiffs' lawyers? It’s simple, really: if lawyers around the country all do a bang-up job of prosecuting their own cases, it helps to increase the settlement value of every other case. By sharing knowledge, the lawyers who agree to speak are helping to assemble a loose-knit, nationwide team of lawyers who will all help to chip away at Merck's defenses. The speakers get the added benefit of increasing their own profiles in the community of Vioxx lawyers, which makes it more likely that other lawyers will refer them their good cases.
The room was so full that there were lawyers standing along the wall in back. The Mealey’s guy who opened the conference used the large crowd as an opportunity to make a joke: “We were hoping for a bigger turnout,” he said. In keeping with the high-profile nature of the event, he next introduced the “press relations agent,” who was available for the lawyers who wanted to “talk to a reporter.” I didn’t see any lawyers jumping up then and there, but I'm sure plenty of them were thinking about it. I guess they all waited for the first break.
Lest anyone think I’m not serious about my vocation as a plaintiffs’ lawyer, I should point out that I took very good notes. The conference chair, Andy Birchfield (photo below left), began by giving a list of “six things we know,” which seemed designed mostly as background for the press in attendance—
- Merck knew the risk of cardiovascular events even before Vioxx went on the market;
- Merck ignored the early warning signs;
- The FDA failed consumers in allowing the drug to get on the market too quickly;
- The FDA failed consumers in allowing the drug to stay on the market too long;
- With 20,000-100,000 adverse events, the “human toll is enormous”;
- Merck will vigorously defend the litigation and do all it can to prevent internal documents, now under a protective order, from “seeing the light of day.”
Several presentations followed: The Pharmacology of Vioxx; A Review of Clinical Studies and Adverse Event Reports; The Role & Impact of the FDA; Theories of Liability; Defenses to the Claim; Overview of Vioxx Litigation; and Effective Case Evaluation.
Should I spare you the details despite my stellar notes? Yes, I think so, with one exception: the presentation by Thomas Moore, supra, a defense lawyer at Drinker Biddle & Reath LLP in Los Angeles, was particularly interesting. Based on his own experiences in the mass-tort trenches, Moore talked about the evolution in the way drug companies have defended mass torts since the fen-phen litigation, where I cut my own mass-tort teeth. One of Moore’s messages was that the plaintiffs’ bar has brought the "greedy trial lawyer" label on itself by taking meritless mass-tort cases and demanding that they have a settlement value despite a lack of injury. According to Moore, this problem is attributable to a second problem: specifically, the way the “advertisers and wholesalers” develop a huge inventory of cases and then refer them to the “trial lawyers” who must agree, as a condition of the referral, to take the bad cases along with the good. Moore urged the trial lawyers in attendance to reassert their control of mass-tort litigation by retaining the right to reject the advertisers' marginal cases.
It was sort of ironic: a defense lawyer preaching to the plaintiff bar about why it should change its business model. But the straight talk was interesting anyway, and the second point of Moore's message was compelling too: that if plaintiffs' lawyers want to fight the idea of tort reform in mass-tort cases, they should start by rejecting meritless cases. Although I agree, I don't think it's as big a problem as Moore thinks it is: as long as drug companies refuse to settle meritless claims, the lawyers with large groups of junk cases will be left to die on the vine. Of course, part of the problem is that plaintiffs' lawyers and defense lawyers usually disagree about the definition of "meritless"; whenever I've had this sort of dispute myself, the defense lawyers were always wrong, at least in my opinion.
The only part of the conference I missed was the presentation about “theories of liability”—not only do I already know the theories of liability, but Federalist No. 84, who lives in the Pasadena area, had e-mailed me earlier and was going to meet me for lunch. This turned out to be quite a lot of fun, as No. 84 wrote about on his own weblog. Being privy to his real identity, I didn’t have to refer to him by a number. After lunch, I was happy to introduce him to my traveling companions, who were camped out in my palatial room waiting for a room-service order. We all sat on the deck for awhile and talked about litigating cases in Los Angeles, the career trajectories of famous lawyers, and ideas for dinner in Pasadena.
After lunch, Federalist No. 84 hit the road, my traveling companions and I returned to the conference, and dinner a few hours later turned out to be not so hot: as mentioned, there wasn't much happening in Pasadena. Now it’s the next morning, time to get my bags together for the long flight back to St. Louis. On the airplane, I’ll be thinking some more about the Vioxx litigation, which so far I've summed up in my mind like this: although the liability aspect of the litigation is very strong, every case will still require the difficult navigation of the Scylla and Charybdis of case-specific causation. It's further evidence that case selection will be critically important in the Vioxx litigation.
With what single, pithy sentence will I end this missive from Pasadena? If you’re a plaintiffs’ lawyer with some Vioxx cases and you need someone to work them up for you, I’m your guy. Send them to me and my team, as long as it's on the condition that you'll let us reject the cases we don’t like. You can follow this link to e-mail me.
I know, I know--my single pithy sentence was actually three sentences. Do you care? If you've made it this far in this post, probably not.
UPDATE 2/14/04. For all of my collected Vioxx posts, look here. If you are (a) someone who was harmed by Vioxx or (b) a lawyer who wants to refer your Vioxx cases to a highly-competent team of mass-tort lawyers, look here.
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