In Re Vioxx Products Liability Litigation

501 F. Supp. 2d 789 (2007)

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Nature of the Case

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Facts

This products liability litigation involves the prescription drug Vioxx. D withdrew it from the market when data from a clinical trial indicated that the use of Vioxx increased the risk of cardiovascular thrombotic events such as myocardial infarctions (heart attacks) and ischemic strokes. Thousands of individual suits and numerous class actions were filed. In response to a plaintiff’s request for production, D asserted attorney-client privilege on a large number of documents and provided a privilege log. The Court ordered D to submit for in camera review all documents as to which it claimed privilege. D delivered 81 boxes to the Court containing approximately 30,000 documents, amounting to nearly 500,000 pages, as to which privilege was asserted. The Court proceeded to review each document individually. The Court removed those documents that it felt were privileged and then instructed the parties to confer on the method by which plaintiffs would receive and/or copy the remaining non-privileged documents. D sought review of the Court's privilege rulings via a petition for a writ of mandamus. The Fifth Circuit declined to issue a writ on jurisdictional grounds but suggested that Court (or its designee) re-examine 2,000 representative documents, that Merck would select, pursuant to a different review protocol. D provided this Court with 10 additional boxes containing approximately 2,000 documents that D believes are representative of all the documents in question. The Court appointed Professor Rice of American University's Washington College of Law as Special Master pursuant to Rule 53 of the Federal Rules of Civil Procedure. Professor Rice is widely recognized as a leading scholar on the law of evidence, and particularly attorney-client privilege, having published several respected treatises and numerous articles and papers on the topic. A Special Master's Report, including recommendations for each individual document, was submitted to the court. D has timely filed a number of objections.