Green Eggs & Ham

From Reporter Nathan Carlile

It was 6:30 a.m. in New Orleans, and Russ Herman had worked up an appetite. “I met my son for breakfast,” Herman said. “We had eggs over light, two biscuits, ham, and several cups of coffee. And we had a lot to talk about.”

Just a hour-and-a-half before, Herman reached one of the biggest civil settlements in U.S. history: A $4.5 billion agreement to end 27,000 suits against Merck & Co. over its pain reliever Vioxx.

Herman’s big breakfast came after a marathon negotiation, the last stretch of which kicked off the morning of Nov. 8 at 8 a.m. and wrapped up Nov. 9 at 5 a.m. Four conference rooms at Herman’s firm, Herman, Herman, Katz & Cotlar were given over to the 20 lawyers that were present during the last few days of settlement talks.

Herman served as coordinating counsel for the plaintiffs in the massive multi-district litigation. On the other side of the negotiating table were Douglas Marvin, Merck’s lead counsel and a partner at Williams & Connolly in D.C., John Beisner, partner and D.C. office head for O’Melveny & Myers, and Adam Hoeflich, a partner at Bartlit Beck Herman Palenchar & Scott in Chicago.

Herman was joined by a cast of plaintiff’s lawyers that included: Andy Birchfield Jr. of Beasley, Allen, Crow, Methvin, Portis & Miles; Arnold Levin of Levin, Fishbein, Sedran & Berman; Christopher Seeger of Seeger Weiss; Edward Blizzard of Blizzard, McCarthy & Nabers; and Tom Girardi of Girardi & Keese.

“It was a true, hard-fought, rough-and-tough negotiation on a very high, professional plane,” Herman says. “Nobody raised their voice or made threats. But people’s positions were very hard. It was like each lawyer had a greased football and was running like a wild monkey.”

Three judges, Judge Eldon Fallon of the U.S. District Court for the Eastern District of Louisiana, New Jersey Superior Court Judge Carol Higbee, and California Superior Court Judge Victoria Chaney had pressured the two sides to reach a settlement. “The deal was reached because three judges told us to get it done,” Herman says.

A defense lawyer said the latest round of settlement talks began in December and kicked into high gear during the last three weeks, with the two sides “basically speaking every day.” For plaintiffs to be eligible for a settlement, they must prove they were injured by the drug, they must have documented proof that they took at least 30 Vioxx pills, and they must prove that they took Vioxx within 14 days of their injury.

Merck & Co. lost a $235 million verdict in Texas in the first Vioxx case to go to trial, but has since won several court victories. But the company told The Wall Street Journal that it wanted to be free of the continuing litigation costs and uncertainty over the impact of future Vioxx litigation. According to the Journal, the company had set aside $1.9 billion for Vioxx legal bills since 2004.