A consortium of Ontario lawyers has won an important carriage case that gives them the whip hand in a looming suit against the makers of the "super Aspirin" painkiller Vioxx.
The carriage action was a vital side-action in a lawsuit that will not only determine who represents class-action clients in a case that may involve thousands of clients and may set the standard for carriage of future litigation.
Last month, Regional Senior Justice Warren Winkler of the Superior Court made his decision on carriage of Setterington v. Merck Frosst Canada Ltd., deciding that an Ontario group led by Harvey Strosberg of Sutts Strosberg LLP in Windsor will quarterback eight class actions filed in Ontario against the drug maker and related companies over Vioxx.
The Strosberg group faced off against Saskatchewan-based Tony Merchant of Merchant Law Group, who successfully fought the main Native residential schools class action.
In the fall of 2004, Merck pulled Vioxx off the market because of concern about its side effects, initiating a flurry of class-action suits around the world. In the U.S. alone, about 4,500 lawsuits involving individuals and groups have been filed in the state and federal courts. In Ontario, eight lawyers from the province and Merchant filed suit within a few days of each other in the first week of October 2004. Similar suits were filed across Canada at the same time.
A co-counsel agreement was worked out between Strosberg, Bonnie Tough of Tough & Podrebarac LLP in Toronto, Michael Peerless of Siskind Cromarty Ivey & Dowler LLP in London, and Joel Rochon of Toronto's Rochon Genova LLP as co-lead counsel. They lead a 19-firm team from across Canada representing clients from all the common-law provinces. They also have an alliance with San Francisco-based Lieff Cabraser Heinmann & Bernstein, which is involved in the U.S. Vioxx litigation.
Merchant, who refused to join the Strosberg-led team, planned to work with Levin Papantonio Thomas Mitchell Echsner & Proctor in Florida. Merchant said his group should get carriage because his lawsuit, unlike Strosberg's, named the federal government.
In his carriage motion, heard in September 2005 and January 2006, Strosberg asked that all other Vioxx suits be stayed and no new ones be allowed to be filed without permission of the court.
The carriage motion litigation was nasty, Peerless said: "The suit couldn't go anywhere until we knew who would be the lawyer for it. Now we're getting started. This group from Saskatchewan that tried to get control of it has effectively held it up for a year.
"It would be fair to say that the tactical approach taken by this particular group is something we're not very used to in Ontario, and they attempt to do things without the proper kind of notice," he said.
"We got the actual motion to assume carriage and five volumes of material at 4:45 on the afternoon the day before the motion. We're talking several thousand pages of material, most of which were not only irrelevant but outrageously irrelevant, but it took hundreds of hours to go through the material just to figure that out.
"That kind of thing is unusual but we were not exactly blindsided because this Merchant Law Group is very aggressive and we knew they were going after these kind of cases and we heard they use tactics like that. They were very public on the fact they had a class action, they were doing a class action in Ontario, so we knew they were out there."
Early in the process, Winkler told Peerless to meet Merchant to try to make a deal with him.
"I did go to meet him, I tried to make a deal, and we couldn't come to one. We had to get it decided by a judge, to decide which group was better able to handle such a thing," Peerless said.
In his decision giving carriage to the Ontario group, Winkler noted the "clear animosity between the two counsel groups, precipitated no doubt by the inclusion of 'scandalous' statements in [Merchant's] materials relating to various members of the Setterington counsel team . . . the lingering effects are such that it would not be in the best interests of the class going forward to order the groups to work together."
Tough, another co-lead counsel, said the last major carriage litigation involved lawyers acting for passengers on the Air Transat case, when a plane landed in the Azores on the way to Portugal after it ran out of fuel.
She said Winkler's decision in Setterington v. Merck Frosst Canada Ltd. shows "the court's going to look at a whole variety of factors. The timing of the action, who started first, is obviously an issue, but also the number of class members and potential class members that have identified themselves to the firms, the experience of the counsel is a huge factor. Is this counsel someone who has the sophistication to carry forward the entire action?"
"In the end, it came down to experience, and whether counsel could work with each other."
She said the class-action bar "is small, but it's growing," but most members work together to try to get a case into a certification hearing, where most cases are decided.
"Most have been settled after certification. The certification tends to focus everyone on a settlement. So there are not that many lawyers in Canada, in common-law provinces, who have taken a case to trial. But there have been a lot of certification hearings," she said.
Peerless says Ontario has become a major jurisdiction in class-action cases involving prescription drugs.
"There are hundreds of actions in the U.S., but very few class actions. The law has developed to the point, especially after amendments by the Bush administration, that class actions alleging personal injuries are pretty much impossible in the U.S.
"There are hundreds of cases, many of them with consolidated clients, involving thousands of people inside the same case, but there are no clear class actions like that.
"In Canada, there's never been a drugs case or a device case as a class action that hasn't been successful. In the U.S., a person who took Vioxx and has a mild heart attack that causes him to spend some time in the hospital and miss six months of work would be worth $5 or 10 million after all appeals are exhausted. It's worthwhile for plaintiffs' lawyers to take a case like that.
"In Canada, no one would take the case because the damages, for an individual person in those circumstances, would be 100 or 200 or 300 thousand dollars. For a person to take on a company the size of Merck, to work on the documents, to overcome their enormous advantage in expert witnesses, for damages that size, it's not worth doing. In Canada, that's the real goal behind having class actions. That's why they're so powerful," he said.