Published September 21, 2012 by Law.com
As the federal Avandia multidistrict litigation draws to a close after 65,000 claims have been winnowed down to between 500 and 600 cases, over 150 lawyers from over 50 plaintiffs law firms are seeking court approval of the dispersal of up to $143.75 million in attorney fees as well as costs undertaken for the common benefit of the entire mass tort litigation.
The requested fee is estimated to be 6.25 percent of the settlements reached in the litigation, according to the motion.
A hearing in front of U.S. District Judge Cynthia M. Rufe of the Eastern District of Pennsylvania on Wednesday opened a window into the complexities, dogfights and uncertainties of the five-year-old litigation.
While Rufe said at the hearing she was taking the motion under advisement, she saw no reason presented at the hearing to not grant the motion.
So far there has not been a single federal or Pennsylvania state trial over the diabetes drug and Avandia drugmaker GlaxoSmithKline has been settling the cases by a firm-by-firm basis. The MDL was established in October 2007.
Joseph J. Zonies, a Denver plaintiffs attorney with Reilly Pozner who was part of the plaintiffs steering committee, testified that the work undertaken in the Avandia litigation meets the requirements under Gunter v. Ridgewood Energy of a fee that is appropriate to the risk of the undertaking, to the quality of the lawyers involved, to the quality of the work involved, and to the benefit conferred upon the mass tort claimants. Another Gunter factor is the risk of nonpayment, Zonies said.
There were several risks that made many plaintiffs counsel around the country balk at getting involved with Avandia, Zonies said.
There was risk of proving specific causation between plaintiffs who took Avandia to treat their diabetes and their cardiac adverse events, as well as that plaintiffs who have Type 2 diabetes are at risk of cardiac adverse events, Zonies said.
Further, as Pepper Hamilton attorneys Nina Gussack and George Lehner looked on, “one does not tread lightly into the waters when Pepper Hamilton is across the table because you know it’s going to be a hard-fought battle,” Zonies said.
Another risk was that there was only one study that showed risks from using Avandia, and that study was a meta-analysis instead of the gold scientific standard of a randomized control trial, Zonies said.