Now that it looks like
CEO Raymond V. Gilmartin will be deposed in New Jersey lawsuits related to the company's decision to pull its arthritis drug Vioxx from the market, there's divided opinion over its significance.
Attorneys for Merck say they are trying to coordinate Gilmartin's testimony for some 240 individual cases filed in New Jersey involving Vioxx. The lawsuits go as far back as two years ago, said Ted Mayer, a partner in the firm of Hughes Hubbard & Reed, one of two outside law firms representing Merck in this matter. An overwhelming majority of cases involve personal injury claims; a few are from third-party companies that paid for Vioxx.
Mayer said he is waiting for a written order from a New Jersey Superior Court Judge, who issued an oral order in mid-December requiring Gilmartin to answer questions from plaintiffs' attorneys. (The judge's verbal order was reported Tuesday by the
) Once he receives the written order, Mayer said he will "consider all options," including an appeal of the judge's order.
If the depositions proceed, they will occur in late March. Gilmartin hasn't been deposed previously, Mayer said.
Under New Jersey law, individual plaintiffs and their attorneys can coordinate the depositions of witnesses. This isn't the same circumstance as a class action suit in which plaintiffs' cases are tried as a single lawsuit.
"Our goal is to make sure that this proceeds in an orderly way," Mayer said Wednesday. Mayer noted that the plaintiffs' attorneys have created a coordination committee that will limit the number of lawyers asking questions, the scope of the questions and the amount of time for deposition. If the opposing parties can't agree on guidelines, the judge will step in, Mayer said.
Plaintiffs seeking depositions and/or testimony from corporate CEOs "is not uncommon," Mayer said. "Very often, it's denied. Sometimes, it's granted." The key to securing Gilmartin's testimony is for plaintiffs' attorneys to demonstrate that he had unique knowledge of the events leading up to Merck withdrawing Vioxx.
Gilmartin has been a frequent, public face on
the company's explanation for why it withdrew the drug after a company-sponsored test showed Vioxx patients had a higher cardiovascular risk after taking the drug for more than 18 months.
Critics have contended that
Merck should have pulled the drug earlier -- perhaps as early as 2000. They say a number of company documents and emails, as reported by
The Wall Street Journal
, illustrate that
Merck executives were aware of Vioxx's potential dangers and that they tried to downplay any bad news about the drug. Merck says the intracompany correspondence has been taken out of context.
"The question is, what did they know and when did they know it?" said Carlton Carl, vice president and director of media relations for the Association of Trial Lawyers of America. Given the information that he has seen in news media accounts of the Vioxx case, such as the corporate emails, Carl said "it is not unreasonable" for attorneys to seek depositions "from the highest-ranking executives."
Carl added that "it is probably comparatively rare" that plaintiffs' lawyers seek to depose to CEOs. But in the case of Vioxx, "there's pretty compelling information" to indicate that "the highest executives" had "informed knowledge" of key facts relating to Merck's strategy.