Kline & Specter takes major Vioxx role

By Porus P. Cooper
Inquirer Staff Writer

The last time Philadelphia personal-injury lawyer Thomas R. Kline faced off against Kenneth Frazier, the result was a tie, Kline recalls.

Kline, 57, a founder of Kline & Specter, was representing a child allegedly injured by Merck & Co. Inc.'s MMR vaccine. Frazier was at Drinker Biddle & Reath L.L.P. and representing Merck.

During the course of the late-1980s litigation, the client chose instead to receive compensation under a new federal vaccine-injury law and drop the suit against Merck. The child received nearly $1 million.

"I guess both sides won in that case," Kline said.

Kline said he and his partner, Shanin Specter, now are part of a consortium of plaintiffs' firms, numbering about a dozen, which is alleging in cases in New Jersey and Pennsylvania state courts and in federal court that in selling Vioxx, "the conduct of Merck was far below the standard expected of a reasonable and prudent pharmaceutical manufacturer."

Kline & Specter and a few of the firms sued Merck even before Vioxx's recall, but activity has swelled since, Kline said in an interview.

His firm is seeking to be on a steering committee of plaintiffs' firms being formed to shepherd pretrial work in federal Vioxx cases. The preparatory activities have been consolidated before a federal judge in New Orleans.

Already, Vioxx litigation has generated seven million pages of documents, he said. At his firm, about 30 lawyers - including two who are also physicians - have spent thousands of hours on Vioxx-related work. The time invested already is worth "in the seven figures," he said.

Kline spoke recently as he prepared to drive to New York to take the deposition of Alise Reicin, a key Merck official involved in the development of the painkiller.

Personal-injury firms typically do not charge clients, but they keep as much as 40 percent of any damages recovered.

Kline would not estimate the size of the potential payoff to his firm. So far, Merck has not set aside reserves for damages. Wyeth has reported pretax charges of $21.1 billion in the "fen-phen" diet-drug cases. Kline said the plaintiffs firms are banding together because there is "a lot of work to be done and an awful lot at stake for clients."

As sole or cocounsel, his firm represents about 2,000 clients in Vioxx actions, he said. The clients are mainly individuals who claim they suffered heart attacks or strokes from taking Vioxx, or their families. Kline & Specter has not asked for class-action status for any of its cases, Kline said. He said he is not surprised Merck is talking of battling the cases one by one.

"We are prepared to do it patient by patient, case by case," Kline said.

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