How a law firm races to repair its Vioxx files
How a law firm races to repair its Vioxx files
Wednesday, February 15, 2006By Heather Won Tesoriero, The Wall Street Journal
Hurricane Katrina destroyed a lot of things, but some of the most difficult to replace are legal files.
That is the dilemma facing the New Orleans law firm of Herman, Herman, Katz & Cotlar. The firm oversees a repository for 10 million documents relating to federal litigation of Merck & Co.'s painkiller drug Vioxx -- including medical reports, depositions and emails -- that plaintiffs' lawyers are permitted to use. Those documents were housed on the 43rd floor of an unharmed office building during the hurricane and stayed dry.
But many of Herman's own 125 federal Vioxx cases were waterlogged, and the firm is scrambling to recreate those documents to meet a court deadline Thursday to turn over files for 90 of those cases to Merck's defense team. That means using a private investigator to track down many plaintiffs whose homes were destroyed, and for whom litigation is the last thing on their minds.
A typical response from plaintiffs once they are found: "'I hadn't even thought about that. I've been busy trying to get things like shoes,'" recalls private investigator Anthony Valenti, a 67-year-old retired police officer.
The law firm is operating with half of its 65-person staff since it returned to temporary offices in the Big Easy in early January. Several employees lost everything, including Leonard Davis, a partner at the firm, and his paralegal.
"We're having a hell of a time," says partner Russ Herman. "We've got medical records destroyed at three hospitals that don't exist anymore."
Merck withdrew Vioxx from the market in Sept. 2004 after it was linked to an increased risk of heart attacks and strokes. The Whitehouse Station, N.J., drug giant faces 9,650 Vioxx cases in state and federal courts.
Katrina has caused other serious problems for the 4,350 federal cases consolidated under U.S. District Court Judge Eldon E. Fallon in New Orleans. The first federal Vioxx trial was relocated to Houston after the hurricane, and ended in a mistrial in December. The retrial started in New Orleans on Feb. 6.
The Herman firm plays a critical role in the federal Vioxx litigation at large. It was appointed by Judge Fallon to serve as an intermediary between the court and plaintiffs' attorneys around the country.
After the storm, the Louisiana governor extended the deadline for filing a case. After that, lawyers have 75 days to turn over files that include questionnaires filled out by plaintiffs and their medical records. The deadline for the Herman firm to submit completed forms to Merck is Thursday -- otherwise, Merck can ask the court to dismiss the cases. Merck liaison counsel Phil Wittmann says Merck has "routinely granted extensions to Mr. Herman and other Louisiana counsel in cases where they've had trouble completing the forms due to Katrina....If Mr. Herman calls me and explains what his problem is, we will grant his extension."
Following the storm, Herman sent letters to clients asking them to send information on their new locations. Almost no one responded. Mr. Valenti started tracking them down using credit card numbers, motor vehicle records and cellphone numbers. He located one plaintiff by obtaining the name of the man's auto insurer from motor vehicle records. The client had been in a car accident and was found living in Brookhaven, Miss.
Since many doctors' and hospitals' records were destroyed in the storm, Herman has been reaching out to third party companies that archive medical records, and even photocopy companies to see if they have them.
Mr. Herman says he is frustrated that he's been unable to locate Allen Rosenzweig, his jury consultant. Mr. Herman told Mr. Valenti, the private investigator, that Mr. Rosenzweig's father was a tailor named Murphy and his mother was named Florence, and he joked that the jury consultant "was crazy enough to be on the top of a roof someplace." Mr. Valenti, the private investigator, came up with a post office box in Kenner, La., and a phone number. The voice on the answering machine said it was Mr. Rosenzweig, but the jury consultant still hasn't been found.
A week after the storm, Herman staffers returned to the damaged office and pulled out essential files -- even those that were yellowed and moldy, Mr. Davis says. "We pick ourselves up and we move on and keep doing what we know how to do," he says.
Mr. Davis recounts a humbling moment when he called Judge Fallon to tell him: "Judge, I'm not going to be able to file that brief today. I don't even have a stapler." Mr. Davis says he and Judge Fallon laughed about the predicament.
Wednesday, February 15, 2006By Heather Won Tesoriero, The Wall Street Journal
Hurricane Katrina destroyed a lot of things, but some of the most difficult to replace are legal files.
That is the dilemma facing the New Orleans law firm of Herman, Herman, Katz & Cotlar. The firm oversees a repository for 10 million documents relating to federal litigation of Merck & Co.'s painkiller drug Vioxx -- including medical reports, depositions and emails -- that plaintiffs' lawyers are permitted to use. Those documents were housed on the 43rd floor of an unharmed office building during the hurricane and stayed dry.
But many of Herman's own 125 federal Vioxx cases were waterlogged, and the firm is scrambling to recreate those documents to meet a court deadline Thursday to turn over files for 90 of those cases to Merck's defense team. That means using a private investigator to track down many plaintiffs whose homes were destroyed, and for whom litigation is the last thing on their minds.
A typical response from plaintiffs once they are found: "'I hadn't even thought about that. I've been busy trying to get things like shoes,'" recalls private investigator Anthony Valenti, a 67-year-old retired police officer.
The law firm is operating with half of its 65-person staff since it returned to temporary offices in the Big Easy in early January. Several employees lost everything, including Leonard Davis, a partner at the firm, and his paralegal.
"We're having a hell of a time," says partner Russ Herman. "We've got medical records destroyed at three hospitals that don't exist anymore."
Merck withdrew Vioxx from the market in Sept. 2004 after it was linked to an increased risk of heart attacks and strokes. The Whitehouse Station, N.J., drug giant faces 9,650 Vioxx cases in state and federal courts.
Katrina has caused other serious problems for the 4,350 federal cases consolidated under U.S. District Court Judge Eldon E. Fallon in New Orleans. The first federal Vioxx trial was relocated to Houston after the hurricane, and ended in a mistrial in December. The retrial started in New Orleans on Feb. 6.
The Herman firm plays a critical role in the federal Vioxx litigation at large. It was appointed by Judge Fallon to serve as an intermediary between the court and plaintiffs' attorneys around the country.
After the storm, the Louisiana governor extended the deadline for filing a case. After that, lawyers have 75 days to turn over files that include questionnaires filled out by plaintiffs and their medical records. The deadline for the Herman firm to submit completed forms to Merck is Thursday -- otherwise, Merck can ask the court to dismiss the cases. Merck liaison counsel Phil Wittmann says Merck has "routinely granted extensions to Mr. Herman and other Louisiana counsel in cases where they've had trouble completing the forms due to Katrina....If Mr. Herman calls me and explains what his problem is, we will grant his extension."
Following the storm, Herman sent letters to clients asking them to send information on their new locations. Almost no one responded. Mr. Valenti started tracking them down using credit card numbers, motor vehicle records and cellphone numbers. He located one plaintiff by obtaining the name of the man's auto insurer from motor vehicle records. The client had been in a car accident and was found living in Brookhaven, Miss.
Since many doctors' and hospitals' records were destroyed in the storm, Herman has been reaching out to third party companies that archive medical records, and even photocopy companies to see if they have them.
Mr. Herman says he is frustrated that he's been unable to locate Allen Rosenzweig, his jury consultant. Mr. Herman told Mr. Valenti, the private investigator, that Mr. Rosenzweig's father was a tailor named Murphy and his mother was named Florence, and he joked that the jury consultant "was crazy enough to be on the top of a roof someplace." Mr. Valenti, the private investigator, came up with a post office box in Kenner, La., and a phone number. The voice on the answering machine said it was Mr. Rosenzweig, but the jury consultant still hasn't been found.
A week after the storm, Herman staffers returned to the damaged office and pulled out essential files -- even those that were yellowed and moldy, Mr. Davis says. "We pick ourselves up and we move on and keep doing what we know how to do," he says.
Mr. Davis recounts a humbling moment when he called Judge Fallon to tell him: "Judge, I'm not going to be able to file that brief today. I don't even have a stapler." Mr. Davis says he and Judge Fallon laughed about the predicament.
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