Vioxx Multidistrict Litigation Judge Profile: A Closer Look at the Odds

Statistical analysis of federal litigation provides a unique insight into particular judges involved in a case, including information on the probable timing/outcomes of cases, and what significant motions are generally granted or denied before a federal judge. Answers are based on verifiable facts, rather than anecdotal assumptions, and provide interested parties with more accurate data.

This type of analysis is particularly interesting for the recent federal Vioxx litigation. Vioxx, a Cox-2 inhibitor used for the treatment of pain, was withdrawn from the market by its manufacturer, Merck & Co., Inc., in September 2004 because of an apparent increased risk of heart attack and stroke. In February 2005, the federal Judicial Panel on Multidistrict Litigation transferred all pending federal Vioxx product liability cases to Judge Eldon E. Fallon of the U.S. District Court for the Eastern District of Louisiana ' transfers conventionally referred to as Multidistrict Litigation (“MDL”) transfers.

As of late April, almost 400 Vioxx product liability cases were pending before Judge Fallon. Details and significant orders concerning the Vioxx multidistrict litigation can be found on the court's Vioxx Web site at http://vioxx.laed.uscourts.gov/. Judge Fallon will control all discovery and pretrial matters in federal Vioxx litigation. Any cases that are not settled or decided through pretrial motions by Judge Fallon will be transferred back to the federal courts from which they originated.

Judge Fallon is no stranger to multidistrict litigation. Since August 2000, he has been presiding over the multidistrict Propulsid product liability litigation. Propulsid, sold by Janssen Pharmaceutical (a wholly owned subsidiary of Johnson & Johnson), was designed to treat gastro esophageal reflux disease. However, the product was later withdrawn from the market in July 2000 because of an increased incidence of heart rhythm abnormalities in patients taking the drug, which resulted in the filing of numerous product liability cases across the country. The Judicial Panel transferred these cases on multidistrict litigation to Judge Fallon for discovery and pretrial matters. The Propulsid multidistrict litigation is still pending before Judge Fallon, but some of the individual cases have since been dismissed.

Judge Fallon appears to be following the same procedures for the Vioxx litigation that he followed in the Propulsid litigation. Consequently, interested parties may gain insight into the case by browsing the court's Propulsid multidistrict litigation Web site at http://propulsid.laed.uscourts.gov/. For example, the plaintiffs' steering committees, in both cases, were appointed approximately 2 months after the multidistrict litigation order was issued. Guidelines for depositions were issued in both cases, and it is anticipated that standard discovery orders to be issued in the Vioxx multidistrict litigation are similar to those issued in the Propulsid multidistrict litigation.

Summary Analysis of Judge Fallon's Product Liability Cases

During the past 10 years, Judge Fallon has been assigned more than 1000 product liability cases. Of these cases, more than 80% are part of either the Propulsid or Vioxx multidistrict litigation. By entering the official court dockets of these cases into a database, each can be analyzed to identify the terminating event (trial, decision on motion, or voluntary dismissal, etc.), as well as the pendency time (time from filing to closure) for each case. The dockets can also be examined for results of any appeals, discovery motion activity, and summary judgment motion activity (whether or not that activity resulted in dismissal of the case). For this particular analysis, cases that were part of the Propulsid multidistrict litigation were identified so that the outcomes could be separately analyzed.

Results from this analysis showed that the plaintiffs prevailed in 11% of Judge Fallon's product liability cases that were decided on the merits. The plaintiff win rate before Judge Fallon in product liability cases is approximately one-half of the nationwide win rate.

Seventy-eight percent of the decisions on the merits in Judge Fallon's product liability cases were decisions on pretrial motions (summary judgment motions or motions to dismiss). Not surprisingly, 93% of the pretrial motions decisions were in favor of the defendants. Although Judge Fallon's history in product liability cases cannot predict the outcome for any given Vioxx case, it does demonstrate that he is not reluctant to grant defendants' motions to dismiss, or motions for summary judgment. Nationwide, only 57% of decisions on the merits in product liability cases are the result of pretrial motions, so Judge Fallon appears to be much more likely to grant such motions.

The average time from filing to a decision on the merits in Judge Fallon's product liability cases was 19.8 months. Trials in Judge Fallon's product liability cases occur, on average, 33 months after the commencement of a suit. Decisions on pretrial motions in Judge Fallon's court occur, on average, 16 months after suit is filed. In the context of the Vioxx litigation, one would expect Judge Fallon to decide individual motions to dismiss or summary judgment motions roughly 16 months after commencement of the suit in which the motion is filed. Historically, there is a considerable range in the time from filing of suit, to granting of these motions.

Although Judge Fallon has a history of resolving cases in less than 3 years, the ongoing Propulsid multidistrict litigation has been pending for 55 months, and less than 50% of the individual cases included in the Propulsid multidistrict litigation have been resolved to date.

Summary Judgment History

Judge Fallon has granted, or denied, 31 motions for summary judgment in his product liability cases. Of these, 61% were granted and 39% denied. Motions for partial summary judgment, as well as dispositive summary judgment motions, are included in these figures. However, these figures do not include summary judgment motions that were withdrawn by the moving party before a decision was rendered, or motions that were denied as moot. Although a decision to file a summary judgment motion in the Vioxx litigation would not be based upon these figures, the numbers do represent the odds of prevailing upon a summary judgment motion that an attorney may otherwise believe has merit. Judge Fallon has granted summary judgment in as short a time as 8 months from filing suit. On average, his product liability cases are decided by summary judgment 17.8 months after suit is filed. One of Judge Fallon's decisions on summary judgment was issued 44 months after suit was filed.

Some of the issues addressed in the summary judgment motions decided by Judge Fallon include medical causation, express warranty, the Louisiana Product Liability Act, jurisdiction, and indemnification. Most of these issues, except for indemnification, arose in the Propulsid multidistrict litigation. Of particular interest was the decision granting summary judgment on the issue of medical causation. Judge Fallon was asked to exclude the testimony of the plaintiff's experts, which he did. That exclusion was based upon the court's conclusion that the experts' opinions were unreliable. Once these testimonies were excluded, there was no evidence that Propulsid caused the plaintiff's symptoms; therefore, the case was dismissed.

History with Respect to Discovery Issues

In the Propulsid multidistrict litigation, Judge Fallon issued a number of orders that were related to discovery issues, including confidentiality, authentication, guidelines for taking depositions, and document production protocols. These orders can be viewed on the court's Propulsid Web site at http://propulsid.laed.uscourts.gov/. The court in the Vioxx litigation has already entered deposition guidelines, similar to those entered in the Propulsid litigation, and orders addressing other discovery issues will undoubtedly be entered in the Vioxx multidistrict litigation as well.

In Judge Fallon's product liability cases, 80% of motions to compel discovery were granted. The outcomes of these motions appeared to be unaffected by the fact that the movant was either a plaintiff or a defendant.

Case Outcomes

Of Judge Fallon's non-multidistrict product liability cases (that is, non-Propulsid and non-Vioxx cases), 2% went to trial. On a national basis, 1% of product liability cases go to trial. The most common outcome for product liability cases assigned to Judge Fallon was an MDL transfer to another court (41%) with the number of incoming MDL transfers exceeding the number of outgoing MDL transfers. The next most common outcome for Judge Fallon's product liability cases was a voluntary dismissal (21%), which often (though not always) represents a settlement. Seventeen percent of these product liability cases were remanded to state court, and decisions on summary judgment accounted for 8% of the total outcomes; 7% were settled (by means other than voluntary dismissal), and 2% were involuntarily dismissed.

Certain outcomes, in Judge Fallon's product liability cases, are reached much more quickly than others. For example, outgoing MDL transfers occur, on average, within 3.3 months. Dismissals for want of prosecution take somewhat longer ' an average of 4.1 months (measured from the filing date of the case). Remands to state court take an average of 4.3 months and voluntary dismissals occur, on average, 12.5 months after filing of the case. Involuntary dismissals take an average of 14 months, and settlements an average of 17.1 months after filing. On average, dispositions by summary judgment occur at 17.8 months, jury trials at 32 months after filing, and bench trials at 36 months.

Outcomes in the Propulsid Multidistrict Litigation

The time from filing to closing, for product liability cases in Judge Fallon's Propulsid multidistrict litigation, averaged at 15.4 months. The range for all types of outcomes was vast ' from 1 to 54.6 months. The average time from filing to closing by involuntary dismissal in these cases was similar (15.3 months), but the range was much less (6.3 months to 37 months). The average time from filing to closing by voluntary dismissal was slightly shorter at 15.1 months, and the time from filing to closing by voluntary dismissal ranged from 1 to 54.6 months.

The 5th month after filing showed the largest number of case terminations (13% of the total terminated cases occurred in that month). The 4th and 7th months (measured from the date each case was filed) each had 7% of the total terminated Propulsid cases. The 11th month had 5% of the closed Propulsid cases, and the 12th month from filing had 6%, with all other months having less than 5%.

The largest number of involuntary dismissals of Propulsid cases (21%) occurred in the 10th month after filing, but 11% occurred in both the 7th and 23rd month after filing. On the other hand, the number of voluntary dismissals peaked in the 5th month after filing ' then fell sharply, thereafter.

Appeals in Product Liability Cases

Very few of Judge Fallon's decisions on the merits in his product liability cases were appealed, and even fewer resulted in an affirmance or reversal on appeal. Of those appeals that did result in an affirmance or a reversal, half were affirmed and half were reversed. Because of the low number of product liability appellate affirmances or reversals, the affirmances and reversals for all of Judge Fallon's personal injury cases were examined. Judge Fallon's affirmance rate for all his personal injury cases is 70%, which is very close to the nationwide average for cases of this type.

Statistical analysis of federal litigation provides a unique insight into particular judges involved in a case, including information on the probable timing/outcomes of cases, and what significant motions are generally granted or denied before a federal judge. Answers are based on verifiable facts, rather than anecdotal assumptions, and provide interested parties with more accurate data.

This type of analysis is particularly interesting for the recent federal Vioxx litigation. Vioxx, a Cox-2 inhibitor used for the treatment of pain, was withdrawn from the market by its manufacturer, Merck & Co., Inc., in September 2004 because of an apparent increased risk of heart attack and stroke. In February 2005, the federal Judicial Panel on Multidistrict Litigation transferred all pending federal Vioxx product liability cases to Judge Eldon E. Fallon of the U.S. District Court for the Eastern District of Louisiana ' transfers conventionally referred to as Multidistrict Litigation (“MDL”) transfers.

As of late April, almost 400 Vioxx product liability cases were pending before Judge Fallon. Details and significant orders concerning the Vioxx multidistrict litigation can be found on the court's Vioxx Web site at http://vioxx.laed.uscourts.gov/. Judge Fallon will control all discovery and pretrial matters in federal Vioxx litigation. Any cases that are not settled or decided through pretrial motions by Judge Fallon will be transferred back to the federal courts from which they originated.

Judge Fallon is no stranger to multidistrict litigation. Since August 2000, he has been presiding over the multidistrict Propulsid product liability litigation. Propulsid, sold by Janssen Pharmaceutical (a wholly owned subsidiary of Johnson & Johnson), was designed to treat gastro esophageal reflux disease. However, the product was later withdrawn from the market in July 2000 because of an increased incidence of heart rhythm abnormalities in patients taking the drug, which resulted in the filing of numerous product liability cases across the country. The Judicial Panel transferred these cases on multidistrict litigation to Judge Fallon for discovery and pretrial matters. The Propulsid multidistrict litigation is still pending before Judge Fallon, but some of the individual cases have since been dismissed.

Judge Fallon appears to be following the same procedures for the Vioxx litigation that he followed in the Propulsid litigation. Consequently, interested parties may gain insight into the case by browsing the court's Propulsid multidistrict litigation Web site at http://propulsid.laed.uscourts.gov/. For example, the plaintiffs' steering committees, in both cases, were appointed approximately 2 months after the multidistrict litigation order was issued. Guidelines for depositions were issued in both cases, and it is anticipated that standard discovery orders to be issued in the Vioxx multidistrict litigation are similar to those issued in the Propulsid multidistrict litigation.

Summary Analysis of Judge Fallon's Product Liability Cases

During the past 10 years, Judge Fallon has been assigned more than 1000 product liability cases. Of these cases, more than 80% are part of either the Propulsid or Vioxx multidistrict litigation. By entering the official court dockets of these cases into a database, each can be analyzed to identify the terminating event (trial, decision on motion, or voluntary dismissal, etc.), as well as the pendency time (time from filing to closure) for each case. The dockets can also be examined for results of any appeals, discovery motion activity, and summary judgment motion activity (whether or not that activity resulted in dismissal of the case). For this particular analysis, cases that were part of the Propulsid multidistrict litigation were identified so that the outcomes could be separately analyzed.

Results from this analysis showed that the plaintiffs prevailed in 11% of Judge Fallon's product liability cases that were decided on the merits. The plaintiff win rate before Judge Fallon in product liability cases is approximately one-half of the nationwide win rate.

Seventy-eight percent of the decisions on the merits in Judge Fallon's product liability cases were decisions on pretrial motions (summary judgment motions or motions to dismiss). Not surprisingly, 93% of the pretrial motions decisions were in favor of the defendants. Although Judge Fallon's history in product liability cases cannot predict the outcome for any given Vioxx case, it does demonstrate that he is not reluctant to grant defendants' motions to dismiss, or motions for summary judgment. Nationwide, only 57% of decisions on the merits in product liability cases are the result of pretrial motions, so Judge Fallon appears to be much more likely to grant such motions.

The average time from filing to a decision on the merits in Judge Fallon's product liability cases was 19.8 months. Trials in Judge Fallon's product liability cases occur, on average, 33 months after the commencement of a suit. Decisions on pretrial motions in Judge Fallon's court occur, on average, 16 months after suit is filed. In the context of the Vioxx litigation, one would expect Judge Fallon to decide individual motions to dismiss or summary judgment motions roughly 16 months after commencement of the suit in which the motion is filed. Historically, there is a considerable range in the time from filing of suit, to granting of these motions.

Although Judge Fallon has a history of resolving cases in less than 3 years, the ongoing Propulsid multidistrict litigation has been pending for 55 months, and less than 50% of the individual cases included in the Propulsid multidistrict litigation have been resolved to date.

Summary Judgment History

Judge Fallon has granted, or denied, 31 motions for summary judgment in his product liability cases. Of these, 61% were granted and 39% denied. Motions for partial summary judgment, as well as dispositive summary judgment motions, are included in these figures. However, these figures do not include summary judgment motions that were withdrawn by the moving party before a decision was rendered, or motions that were denied as moot. Although a decision to file a summary judgment motion in the Vioxx litigation would not be based upon these figures, the numbers do represent the odds of prevailing upon a summary judgment motion that an attorney may otherwise believe has merit. Judge Fallon has granted summary judgment in as short a time as 8 months from filing suit. On average, his product liability cases are decided by summary judgment 17.8 months after suit is filed. One of Judge Fallon's decisions on summary judgment was issued 44 months after suit was filed.

Some of the issues addressed in the summary judgment motions decided by Judge Fallon include medical causation, express warranty, the Louisiana Product Liability Act, jurisdiction, and indemnification. Most of these issues, except for indemnification, arose in the Propulsid multidistrict litigation. Of particular interest was the decision granting summary judgment on the issue of medical causation. Judge Fallon was asked to exclude the testimony of the plaintiff's experts, which he did. That exclusion was based upon the court's conclusion that the experts' opinions were unreliable. Once these testimonies were excluded, there was no evidence that Propulsid caused the plaintiff's symptoms; therefore, the case was dismissed.

History with Respect to Discovery Issues

In the Propulsid multidistrict litigation, Judge Fallon issued a number of orders that were related to discovery issues, including confidentiality, authentication, guidelines for taking depositions, and document production protocols. These orders can be viewed on the court's Propulsid Web site at http://propulsid.laed.uscourts.gov/. The court in the Vioxx litigation has already entered deposition guidelines, similar to those entered in the Propulsid litigation, and orders addressing other discovery issues will undoubtedly be entered in the Vioxx multidistrict litigation as well.

In Judge Fallon's product liability cases, 80% of motions to compel discovery were granted. The outcomes of these motions appeared to be unaffected by the fact that the movant was either a plaintiff or a defendant.

Case Outcomes

Of Judge Fallon's non-multidistrict product liability cases (that is, non-Propulsid and non-Vioxx cases), 2% went to trial. On a national basis, 1% of product liability cases go to trial. The most common outcome for product liability cases assigned to Judge Fallon was an MDL transfer to another court (41%) with the number of incoming MDL transfers exceeding the number of outgoing MDL transfers. The next most common outcome for Judge Fallon's product liability cases was a voluntary dismissal (21%), which often (though not always) represents a settlement. Seventeen percent of these product liability cases were remanded to state court, and decisions on summary judgment accounted for 8% of the total outcomes; 7% were settled (by means other than voluntary dismissal), and 2% were involuntarily dismissed.

Certain outcomes, in Judge Fallon's product liability cases, are reached much more quickly than others. For example, outgoing MDL transfers occur, on average, within 3.3 months. Dismissals for want of prosecution take somewhat longer ' an average of 4.1 months (measured from the filing date of the case). Remands to state court take an average of 4.3 months and voluntary dismissals occur, on average, 12.5 months after filing of the case. Involuntary dismissals take an average of 14 months, and settlements an average of 17.1 months after filing. On average, dispositions by summary judgment occur at 17.8 months, jury trials at 32 months after filing, and bench trials at 36 months.

Outcomes in the Propulsid Multidistrict Litigation

The time from filing to closing, for product liability cases in Judge Fallon's Propulsid multidistrict litigation, averaged at 15.4 months. The range for all types of outcomes was vast ' from 1 to 54.6 months. The average time from filing to closing by involuntary dismissal in these cases was similar (15.3 months), but the range was much less (6.3 months to 37 months). The average time from filing to closing by voluntary dismissal was slightly shorter at 15.1 months, and the time from filing to closing by voluntary dismissal ranged from 1 to 54.6 months.

The 5th month after filing showed the largest number of case terminations (13% of the total terminated cases occurred in that month). The 4th and 7th months (measured from the date each case was filed) each had 7% of the total terminated Propulsid cases. The 11th month had 5% of the closed Propulsid cases, and the 12th month from filing had 6%, with all other months having less than 5%.

The largest number of involuntary dismissals of Propulsid cases (21%) occurred in the 10th month after filing, but 11% occurred in both the 7th and 23rd month after filing. On the other hand, the number of voluntary dismissals peaked in the 5th month after filing ' then fell sharply, thereafter.

Appeals in Product Liability Cases

Very few of Judge Fallon's decisions on the merits in his product liability cases were appealed, and even fewer resulted in an affirmance or reversal on appeal. Of those appeals that did result in an affirmance or a reversal, half were affirmed and half were reversed. Because of the low number of product liability appellate affirmances or reversals, the affirmances and reversals for all of Judge Fallon's personal injury cases were examined. Judge Fallon's affirmance rate for all his personal injury cases is 70%, which is very close to the nationwide average for cases of this type.