Judge Stack transfers Vioxx cases out of Madison County

Steve Korris Feb. 22, 2007, 1:45am

As Madison County Circuit Judge Daniel Stack prepared for a month long trial over painkiller Vioxx, he transferred three other Vioxx suits out of Madison County.

Stack on Feb. 7 granted a motion of drug maker Merck to send two Vioxx plaintiffs to DuPage County and one to Sangamon County.

Stack ruled against plaintiff attorney Jeffrey Lowe of Clayton, Mo.

Lowe filed a single product liability suit for those three plaintiffs and seven others in January 2006.

Along with Merck, Lowe sued Walgreens and Osco drug stores.

His complaint identified all 10 plaintiffs as Illinois residents.
He identified one, Beth Brodhacker, as a resident of Madison County.

Merck removed the suit to U.S. District Court in February 2006.

U.S. District Judge Patrick Murphy remanded it to Madison County in April.

From July to November Merck moved to sever the plaintiffs and transfer their claims to courts where they lived.

This Jan. 3, Stack granted Merck's motions to sever. He created 10 suits.

Lowe tried to put his package of plaintiffs back together. He moved to consolidate all 10 suits for discovery purposes.

Merck on Jan. 11 removed seven suits, including that of Madison County resident Brodhacker, to federal court

Murphy took the cases. Lowe moved for another remand order.

Back in Stack's court, Merck and the stores sought transfer of the three remaining suits under the doctrine of forum non conveniens.

At a Feb. 7 hearing Lowe persisted in trying to consolidate the suits, even those in federal court.

He told Stack, "You are going to make a ruling on three plaintiffs in this case and then all of a sudden another seven plaintiffs are going to come back."

Merck attorney Daniel Nester said, "What Jeff is proposing is some type of multi district litigation, which is not what we have here."

Lowe said, "I think we should wait until the cases come back, and then the motion to consolidate should be heard first and then the forum motion."

Nester said, "What Jeff is really proposing is essentially a motion to reconsider on the severance argument."

Stack said, "He is asking simply to consolidate them for purposes of discovery, but not to actually have them consolidated for trial."

David Dick, representing the stores, said plaintiff Edward Miechle lived in DuPage County.

He said two doctors in DuPage County prescribed Vioxx for Miechle, and Miechle bought Vioxx at an Osco store in DuPage County.

Plaintiff Barbara Rutherford lived in Springfield and her doctors and drug stores were in Springfield, Dick said.

Lowe said it was more convenient to bring expert witnesses to Madison County than to Sangamon County.

"Doctors rarely appear live at trial," Lowe said. "The only people who would supposedly be inconvenienced are the plaintiffs who would have to come here from their home town."

"My last point is," Lowe said, "if you are going to transfer them you should do what Judge O'Malley did, which is transfer them all to Cook County."

Ball said, "Mr. Lowe should be applauded on the imaginative lawyering he has done here, okay, and that is all that he should be applauded for."

Lowe said, "I prefer to think of it as creative."

Ball said, "This whole talk about consolidation is just another way of his trying to reargue the severance that we have just been dealing with for the past couple of months."

He told Stack that Lowe said doctors don't testify live.

"This case we are going to do here in a couple of weeks, the doctor from St. Clair County is going to come up here and testify live at trial," Ball said.

He said Merck would appeal O'Malley's transfers to Cook County.

Lowe said there would be a lot of witnesses from Walgreens corporate headquarters.

Dick said, "If that is the case, that is in Lake County."

Lowe said, "True."

Dick said, "Miss Rutherford lives in Springfield with all of her doctors."

Ball said, "That is the only one that Walgreens has been named as a party in."

Lowe said plaintiff Rachel Garza bought Vioxx from Walgreens.

Ball said, "You didn't sue them."

Lowe said, "We can fix that."

Stack said, "Okay, the court finds that the Rutherford case should be transferred to Sangamon County."

He said, "Miechle and Garza both will be transferred to DuPage County."

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