Merck drops some objections to Vioxx plaintiff lawyers' request

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courtNEW YORK -- Merck & Co. agreed to drop some of its objections to plaintiff lawyers' request for fees in a Vioxx case, but only if it doesn't have to disclose its own legal fees to a judge.

Plaintiff lawyer Ellen Relkin said Merck dropped some of its objections because it fears a N.J. judge may publicly disclose what it spent on a trial that ended earlier this year. Merck lawyer Ted Mayer said the drugmaker's legal fees have no relation to the plaintiff lawyers' request and that companies always want to be careful when asked to reveal such sensitive information.

Any disclosure of what Merck spent on a case would provide a window into how much the drugmaker's strategy of individually trying each of the roughly 24,000 cases it faces will ultimately cost. So far, Merck has set aside about $1.57 billion to cover legal expenses.

Last month, N.J. Superior Court Judge Carol Higbee ordered Merck to disclose what it spent on a trial that combined the cases of two men after the company balked that the $5.6 million in legal fees requested by plaintiffs attorneys from the drugmaker was too high. Relkin said the order stemmed from a request by plaintiff lawyers from the firms working on the trial that Merck disclose its legal spending so it could be compared with the amount they sought.

Because the jury found that drugmaker committed consumer fraud as it marketed the now withdrawn pain killer Vioxx, plaintiffs' lawyers were able to seek fees from Merck.

The jury only found Merck liable for one man's heart attack.

Mayer said the company still believes the amount is exorbitant but agreed to drop various objections so the judge could concentrate on what would constitute a reasonable amount. He wouldn't say what he believed would be fair.

In the motion filed Thursday, Merck agreed to drop objections to the amount over several issues, including plaintiffs' use of senior lawyers to perform duties that a junior associate could have accomplished, bills for travel time and stays in luxury hotels.

Mayer said that lawyers are only entitled to fees connected with the consumer fraud portion of the case, not the product liability section and that there is no way plaintiffs attorney's spent so much money on that one sector of the case.

Relkin, one of many lawyers from two firms said that the request doesn't include any charges that were specifically derived from the product liability portion of the case. However, she said that since the two issues are so intermingled, it isn't always easy to separate which costs were for which claims. Plaintiff lawyers offered to take 50 percent of the $5.6 million, she said. Merck is still objecting to that.

The order requires Merck to give its itemized spending to the Judge for her consideration. However, Relkin said it is possible that the judge could make a public reference to the total spending without disclosing any sensitive information.

"This (the motion) shows how terrified they (Merck) are that she might disclose their total billing," she said.

Relkin said the plaintiffs' lawyer plan to object to Merck's motion because they believe the company should have to disclose its fees if it continues to say their request is too high.

"The judge's order is unusual and not germane to what the dispute is about," Mayer said. 

source - Newsday