Merck announced yesterday, and many press accounts repeated, that there are now 9200 lawsuits that have been filed against Merck over Vioxx (and another 188 class actions). But the 9200 number underestimates the scope of Merck's problem, because many of the lawsuits have multiple plaintiffs. (E.g., Oct. 15.) To date, the breakdown is:
Federal MDL: ~4,250 suits and ~11,425 plaintiff groups
New Jersey: ~4,000 suits and ~4,000 plaintiff groups
Other state courts: ~1,150 suits and ~2,825 plaintiff groups
In addition, there are 3,700 plaintiff groups who have signed tolling agreements with Merck in lieu of suit; a defendant would make such an agreement to prevent a suit from going forward in the hopes that the plaintiff will abandon suit before filing, while a plaintiff would agree to tolling to decide whether and where to sue. Where? Yes: a plaintiff can structure his or her suit to end up in federal court, where it would become part of the MDL; can sue Merck in New Jersey, where it would be consolidated in Judge Higbee's court, and Merck, because it had been sued in its home state, could not remove the case; or could attempt the tactic of suing an in-state co-defendant (again, Oct. 15) to keep the case in the plaintiff's home-state state court—or even of joining the plaintiff with another plaintiff and forum-shop for an even more favorable state court.
For a substantial number of potential plaintiffs, the statute of limitations expires September 30, 2006. Many plaintiffs are likely waiting to see how the next few federal and New Jersey cases shake out to decide where they want to file their cases. We can thus expect to see a tremendous increase in the raw number of pending cases in nine months.
In other Vioxx news: