With hundreds of Vioxx product liability cases to sift through, some Madison County judges seem willing to -- as one defense lawyer put it, "halt the gerrymandering of joinder."
Merck & Co., Walgreens, and Osco Drugs -- defendants in a myriad of lawsuits brought by plaintiffs claiming heart-related problems from taking the recalled arthritis pain-reliever -- recently filed motions to sever the claims of 10 plaintiffs claiming only one of them is a resident of Madison County.
The motions asked Circuit Judge Daniel Stack to separate into single cases those claims and then transfer the plaintiffs with no ties to Madison County on the grounds of forum non conveniens.
Stack granted the motions to sever and set a Feb. 7 hearing to rule on the forum issue.
Tens of thousands of similar Vioxx claims have been filed across the country. Verdicts in about a dozen trials so far have been split for plaintiffs and Merck.
The first Madison County Vioxx trial is expected in 2007.
"Plaintiffs improperly seek to join in one lawsuit the claims of ten different people who allege that they suffered personal injuries from taking Vioxx," Merck's motion states.
The motion argues that Illinois law requires two specific requirements for the joinder of plaintiffs -- that the actions must involve "common questions of law or fact" and the right to relief must be "in respect of or arising out of the same transaction or series of transactions."
Representing Merck, attorneys Steve Strauss and Dan Ball of Bryan Cave in St. Louis told Stack the plaintiffs claims do not arise out of the same transaction because they were not prescribed Vioxx by the same doctor for the same purpose.
"Plaintiffs did not purchase Vioxx at the same pharmacy or take the same dosages of Vioxx," Strauss wrote. "They do not have similar medical histories, and they did not take Vioxx during the same period of time."
Merck also claims plaintiffs' injuries vary in nature and were treated by different doctors.
"Each of these differences will be highly relevant to the resolution of the plaintiffs' claims," Strauss wrote. "The claims were therefore improperly joined and should be severed."
Merck and the pharmacies' attorneys informed Stack that before her retirement, Circuit Judge Lola Maddox, agreed with them and severed 16 plaintiffs in two similar cases against them on Nov. 16, 2006. Maddox retired two weeks later on Nov. 30.
In her order, Maddox wrote, "Plaintiffs are unable to cite one case from Illinois where multiple plaintiffs were found to have properly filed their cases in one suit for damages claimed to have resulted from a product such as a drug or substance such as asbestos."
Maddox concluded that each plaintiff had a different medical history, a different pharmacist, a different work history, suffered their injuries at different times, and had different damages resulting from their ingestion of Vioxx.
"This court does not believe that these cases are similar, and further, if the forum non conveniens motions are subsequently granted, the cases of all but one plaintiff will not be tried in this court," Maddox wrote.
Maddox pointed out that the appellate court has held in similar cases -- ones with multiple claims -- that the risk of confusion was simply too great to allow them to be tried by one jury.
She said that when trial judges do not sever claims similar the higher courts reverse the trial judge for "error and abuse of discretion."
Maddox did not rule on the forum issues, she passed that on to her successor, Circuit Judge Barbara Crowder, to rule at a later date.
Halt the gerrymandering!
In a lawsuit with 27 plaintiffs, Walgreens is asking Stack to transfer the claims of Barbara Rutherford to Sangamon County in Springfield.
Attorneys for Walgreens claim she admitted to living in Springfield, had all 15 of her Vioxx prescriptions filled in Springfield, and further claims her doctor practices medicine in Springfield.
Walgreens also claims public interest weighs strongly in favor of litigating the case in Springfield since Madison County has no connection to Rutherford's claims.
"Rutherford's claim is not a localized controversy to Madison County; indeed it has nothing to do with Madison County," Walgreens' motion states.
They are represented by David Dick and Frank Smith of St. Louis.
"The jurors of Madison County have no interest in serving in Rutherford's case, and the taxpayers of Madison County certainly have no interest in paying for it," the attorneys wrote.
"The court should transfer plaintiff's claims to halt the gerrymandering of joinder designed to backdoor plaintiffs from all over Illinois into Madison County," they wrote. "The court cannot allow the 26 other plaintiffs who have no connection to Madison County and who are from all over Illinois to piggyback onto the claims of one Madison County resident."
The plaintiffs, represented by Jeffrey Lowe, Evan Schaeffer, John Carey and Evan Buxner, replied by saying the defendants did not dispute Madison County has both jurisdiction and venue.
"Venue is proper in Madison County because the pharmacy defendants are residents of Madison County because they maintain an office in the county," Lowe wrote.
Lowe also claims that if Stack would deny the motion to sever the motions to transfer would be moot.
He claims his clients' substantial interest in choosing a forum should not be disturbed and claims the defendants cannot meet their heavy burden to warrant disturbing the plaintiffs' choice of forum.
"Defendants have not shown any impediments to accessing sources of testimonial, documentary, and real evidence in defending this case in Madison County as opposed to other Illinois counties," Lowe wrote.
Lowe also told Stack that all the lawyers for the defendants are located near Madison County and are not located in the counties they wish to have the cases transferred.
"Furthermore, defendants in their motion have not indicated nor brought supporting evidence that trying the case in Madison County as opposed to the other Illinois counties would be any inconvenience whatsoever."
Lowe also claims that since one of the plaintiffs' claims will be tried in Madison County, the burden of the jury will not be much greater to try several plaintiffs as opposed to just one.