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NY Firms Campaign for Clients to Join Vioxx Litigation

Mar 15, 2005 | New York Law Journal
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Pulling no punches, a Long Island law firm has launched an aggressive marketing campaign aimed at educating the public about the dangers of Vioxx, the recalled prescription pain reliever.

The campaign by Mineola's Sanders, Sanders, Block, Woycik, Viener & Grossman includes a slew of print, radio and TV advertisements as well as a series of free dinner seminars.

"Vioxx is a terrible drug," founding partner Stanley J. Sanders recently told a group of about 30 gathered last week at a Uniondale hotel. "It was drug they knew they had problems with before they brought it to market."

The Sanders firm has already staged five such informational dinners this year. A sixth was canceled last week because of snow, but at least three more are scheduled for April.

Mr. Sanders declined to place a dollar value on the marketing campaign, but said in an interview, "We're a successful law firm because we properly fund our cases."

Mr. Sanders, whose 30-lawyer firm is Nassau's largest personal injury practice, calls the seminars a public service.

"The public really doesn't have a place to go" for information on Vioxx and what their rights are if they believe that they, or someone they know, has been injured by the drug, he said after the Uniondale seminar.

Legal ethicists and others agree that while the Sanders campaign may not suit their tastes, the firm is doing nothing wrong as long as its attorneys comply with the state's Code of Professional Responsibility.

"I'm all for events that allow people to evaluate lawyers," said ethics professor Roy D. Simon Jr. of Hofstra Law School, who has counseled other law firms across the country on their Vioxx marketing practices.

But, Mr. Simon cautioned, a line must be drawn between education and the direct solicitation of clients, which is barred by the code. And presentations must be truthful and not misleading, he added.

Touro Law School Dean Lawrence Raful, another ethics expert, expressed similar sentiments.

The test, he said, is "were you solicited for business and if you didn't like what you saw, could you get up and leave the room?"

Mr. Sanders said that clients are not signed up at the seminars.

Vioxx was produced and marketed until September by Merck & Co., the Whitehouse Station, N.J-based pharmaceuticals giant. Vioxx is one of a family of non-steroidal anti-inflammatory drugs known as Cox-2 inhibitors, named after the enzyme they block.

Merck withdrew Vioxx from the market shortly after it received a warning from the federal Food and Drug Administration, which chastised the company for knowingly minimizing the drug's potential for increasing the risk of heart attack and stroke.

More than 100 million Vioxx prescriptions were written during its six year market run. By the time the drug was pulled, Merck was already named in product liability lawsuits.

The litigation has spawned In Re Vioxx Product Liability Litigation, MDL-1657, a federal multidistrict action assigned to U.S. District Judge Eldon E. Fallon of the Eastern District of Louisiana. It has also necessitated the creation of a special Vioxx mass tort part in state court in Atlantic County, N.J., presided over by Judge Carol E. Higbee.

Uniondale Seminar

Leading off last week's seminar in Uniondale, which was held in a small conference room in the basement of the Long Island Marriott, Mr. Sanders introduced himself and his partners before telling the audience that the firm prepares each of its cases as if it is going to trial.

"So we're ready to beat somebody's brains in," he told the group.

He then turned his attention to Vioxx. Saying that the drug "is not the only pain reliever that exists in the world." Mr. Sanders then asked, "Who is Vioxx most important for, the patient or Merck?"

Mr. Sanders was followed to the podium by his daughter and partner, Meryl Sanders Viener.

Calling Vioxx a "blockbuster drug," she said an estimated 20 million people in the United States used Vioxx, and that it had global sales of $2.5 billion since 2003.

A Merck spokeswoman failed to confirm the statistics before press time.

During a PowerPoint slide show, Ms. Viener accused the company of disregarding studies showing that while Vioxx was easier on the digestive system, it was twice as likely as other pain relievers to induce heart attacks and strokes.

In a phone interview, Hughes Hubbard & Reed partner James C. Fitzpatrick, an attorney on the Vioxx defense team, flatly disagreed with Ms. Viener's assertion, calling it "a complete misinterpretation of the documents."

He said the Sanders firm may be misinterpreting the meaning of corporate documents produced during discovery in some of the earliest Vioxx lawsuits, e-mails passed between Merck scientists discussing the risks associated with the drug. Those discussions, he said, were had in the context of testing Vioxx against other pain relievers before it was released. The company, he added, was not ignoring warning signs.

Mr. Sanders said in an interview that his firm is making no misrepresantations.

"What was on those slides speaks for themselves," he said. The defense attorney will "certainly have his chance to explain it to a jury," he added.

Doctor's Presentation

The group at the Marriott last week also heard from Dr. Brad Sherman, an internist who once touted the benefits of Vioxx. He is a faculty member at North Shore University Hospital in Manhasset.

Dr. Sherman opened his presentation with a confession of sorts, telling the group that he prescribed Vioxx for patients, friends and family and took it himself.

He then dove into the science of the drug, explaining how it worked and its side effects.

After his speech, Dr. Sherman said in an interview that he came to join the anti-Vioxx team because of his personal friendship with Mark Grossman, a partner in the Sanders law firm. Still, Dr. Sherman said he is a non-partisan who sees his role as educating people on the science of Cox-2 inhibitors.

"My approach is not to bash the drug company," he said.

At the conclusion of the seminar, Sanders attorneys moved from table to table, mingling with attendees and listening to their concerns.

Robert Sullivan of Mineola's Sullivan Papain Block McGrath & Cannavo is also pursuing Vioxx litigation cases, albeit with a different marketing strategy.

"I have no problem with what the Sanders law firm is doing," he said. "Everybody's trying to get cases in different ways. I don't like legal advertising, but as long as legal advertising is going to be legal, there's nothing wrong with what [the Sanders attorneys] are doing."

The Sullivan firm and Great Neck's Parker & Waichman were among the first attorneys in the county to sue Merck when the dangers of Vioxx came to light.

Andrew Carboy, one of Mr. Sullivan's partners, said his firm advertised when the recall was first announced, but now the firm receives most of its cases on referral from other lawyers. Stating that there seemed to be a consolidation of cases behind a handful of experienced lawyers, he speculated that the largest wave may have already crested.

Jerrold S. Parker of Parker & Waichman did not respond to a request for comment.

One New Client

Some attendees last week seemed favorably disposed toward Mr. Sanders and his team.

Teary-eyed, Jan Blake of Lindenhurst said she came to the seminar to see if she could learn whether Vioxx killed her mother, who died following a series of strokes in 2003.

"I have to know how early she took it," she said, sitting with a sheaf of drug records in her lap.

Ms. Blake, who took three pages of notes, called the seminar "informative." She also said she intends to hire Meryl Viener.
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