Merck & Company, the third-largest drug maker in the United States, is escaping liability for the adverse side effects that Vioxx caused thousands of patients. As published in The New York Times, Merck has forced every claim to be tried on a case-by-case basis, not allowing for plaintiffs to aggregate their claims. So far courts have agreed with Merck that because each plaintiff’s claim is based on a separate set of facts (specific to that particular plaintiff), the claims should not be aggregated. However, how fair is this to the plaintiffs?

Vioxx was withdrawn from the market in 2004 because it was found that patients who had taken the drug for 18 months or more were suffering heart attacks. Scientists say that over 20 million Americans have taken Vioxx and that approximately 100,000 have suffered heart attacks. Merck said “it had adequately warned patients and doctors of Vioxx’s heart risks an that it never knowingly endangered patients.” However, counsel for the drug maker, Theodore V.H. Mayer, partner at Hughes Hubbard & Reed contends that there is not one case yet that he has tried where Vioxx caused a heart attack, simply because they are a very common occurrence. If Merck admitted that Vioxx can cause heart attacks, then why is it’s counsel against settling the cases?

So far over 45,000 claims have been filed against Merck, but less than 20 cases have actually made it to a jury. Most of the cases are in the pretrial discovery phase where Merck’s lawyers are investigating into the amount of Vioxx taken by the plaintiffs, how long they took it for, when they suffered a heart attack, how close to suffering the heart attack were they taking the drug, etc. Many plaintiffs’ lawyers are discouraged from pursuing their claims against Merck because of a lack of sufficient evidence regarding the taking of the medicine and the suffering of the heart attack. So far Merck has won most of the cases that have gone to trial and the ones it lost it has appealed.

Merck’s tactics are discouraging to plaintiffs because most of them will never see their day in court. There are no settlement opportunities available to the plaintiffs and because of the sheer volume of cases, many of the plaintiffs will probably die before their case is heard. One attorney, Mr. Lanier, who represented Carol Ernst in a case against Merck in 2005, says, “Merck’s goal is to manipulate the legal system to deprive justice to tens of thousands of people whose cases can never be heard.” That seems to be just what Merck is doing. Even though Ernst won her case against Merck and was awarded $253.5 million, the drug maker appealed the ruling and had the damages lowered to $26.1 million.

In total, Merck has spent over $1 billion in the last three years in legal fees which, unfortunately enough for the plaintiffs, has seemed to help Merck out tremendously. Not only are the number of claims against Merck decreasing, but so too is the total amount of liability, down to $5 billion from a previously estimated $25 billion. The victims in this whole scheme are the plaintiffs who not only suffered adverse effects from taking Vioxx, but who—for the majority—will never get a chance to face Merck in court. For those few who might bring their case and win, such as Ernst, victory is bittersweet because it will be years before any compensation is even paid out (it is estimated that the earliest Ernst might see any compensation is in 2008).

To read the full New York Times article, click on the link below:

“Plaintiffs Find Payday Elusive in Vioxx Cases”

Reuters and the NY Times published articles in which U.S. District Court Judge Eldon Fallon denied Merck’s motion for summary judgment in two Vioxx cases. Merck’s argument that the cases should be thrown out on the grounds of preemption did not persuade Judge Fallon. Merck argued that an FDA’s rule preempts the ability to file a products liability lawsuit, but the court ruled that the plaintiffs’ claims did not violate federal law and therefore the plaintiffs’ claims are still valid.

Reuters article- Judge denies Merck motion to discard Vioxx cases

NY Times article- Judge Rejects Merck’s View on F.D.A. Issue

The U.S. District Court’s ruling is also discussed on the FDA Law Blog webpage. The published article cites specific rulings made by the court (see the end of the article).

Supreme Court to Hear Case Involving Scope of the Preemption Provision of the Medical Device Amendments

In the resumption of the weekly radio podcasts of Civil Action Radio Attorney Jan Schlichtmann and co-host Mark Wahlstrom bring you a podcast on the issue of pre-emption and a recent announcement from the Texas State Court that has consolidated the Vioxx cases there.

You can read an excellent summary provided by the Houston Chronicle by clicking here.

Jan takes up the issue of preemption, as it relates to these cases and the ruling by Judge Randy Wilson, and his opinion that these preemption cases, based this time on an FDA regulation written in 2004, creates the ability to toss the 888 vioxx cases pending in his court.

Listen to the podcast by clicking here, or you can just click on the Itunes icon down on our left line that looks like this happy little purple peg figure, to listen to this edition of Civil Action Radio.