The challenge to the Vioxx settlement made on ethical grounds was voluntarily withdrawn in a brief filed on December 22. The supporting papers in the motion to withdraw state that the parties are meeting on the issue and have made "great progress," but do not specify what that progress is.
The New York Times is reporting that several plaintiff's lawyers have "asked the federal judge overseeing the $4.85 billion Vioxx settlement to give them the freedom to keep some of their clients outside the settlement while still allowing other clients to accept it."
One portion of the proposed agreement has been a big problem for a number of lawyers representing Vioxx plaintiffs. Merck is demanding that lawyers advise ALL their clients to accept the agreement. The obvious problem for the lawyers is that while the agreement might be best for some of the clients, it won't necessarily be best for all of them. So the lawyer is put in a position of deliberately giving bad advice to some clients -- a grievable offense. Here are excerpts from the article:
In an emergency motion with Judge Eldon E. Fallon of Federal District Court in New Orleans, the plaintiffs’ lawyers said the provision would prevent them from offering the best independent judgment for each client. Agreeing to the provision might open them to future lawsuits from disgruntled clients, they said.
“The Settlement Agreement, which allows Merck to dictate the advice a lawyer will offer, is improper in all states,” the lawyers wrote in the motion, which was filed Monday.
Merck and several large plaintiffs’ law firms agreed to the settlement last month as a way to resolve more than 50,000 claims from people who assert that Vioxx, a painkiller that was pulled from the market in 2004, caused them to suffer heart attacks and strokes. Merck had won most of the 18 suits that reached juries in both state and federal court.
The requirement that lawyers agree to recommend the deal to all their clients — and withdraw from representing those who do not agree — is a crucial part of the agreement.
Merck wants lawyers to put all their clients into it so that it will not face the prospect that they will settle their weaker claims while withholding their stronger cases for trial in the future. Merck also wants to be sure that plaintiffs who do choose to go ahead will have to find new lawyers, a process that will probably be difficult because the firms with the most experience in the case are all part of the agreement.
For the deal to take effect, 85 percent of all plaintiffs, as well as 85 percent of plaintiffs who have stronger cases because they took the drug continuously for more than a year, must agree to its terms.
But Benjamin Zipursky, a professor at Fordham Law School who has closely followed the case, said the all-or-nothing requirement might pose ethical problems.
“The question is, is this really independent advice given to each client if the lawyer obligates himself or herself to say this to all the clients,” Mr. Zipursky said.
Mr. Mayer, the Merck lawyer, said the federal court might not be able to change the settlement, since the Vioxx cases were not being tried as a class action, in which any overall settlement requires judicial approval. He declined to say what the company would do if Judge Fallon ordered the two sides to change the agreement.
The motion will be heard in mid-January.
It seems like every week we learn of a new medication that carries severe side effects, not mentioned in the drug literature. Now there's a great source for getting this information in a timely manner. Public Citizen has a Web site called WorstPills that will send you warnings about dangerous drugs. You do have to pay a $15 annual fee for the warnings, but you can see the information at the site for free.
In a very significant setback to consumers everywhere, and to Vioxx victims specifically, a Texas state district judge yesterday made a ruling that reflects the current Republican viewpoint that business should be protected from lawsuits at any cost to injured people. Here are excerpts from an article at MyWay.com:
More than 1,000 personal injury lawsuits filed in Texas over the once-popular pain medication Vioxx were put on hold Friday after a judge ruled the drug's manufacturer had given adequate warnings about the drug.
State District Judge Randy Wilson, based in Harris County, granted a motion by Merck & Co. Inc., the drug's manufacturer, to dismiss part of a lawsuit filed by Ruby Ledbetter.
Merck's attorneys argued a 2003 Texas law prevents Ledbetter from claiming she wasn't properly warned about Vioxx.
The law, passed as part of tort reform efforts, says a drug manufacturer is not liable in allegations it failed to provide sufficient warnings about its product if the drug in question came with warnings approved by the Food and Drug Administration.
Friday's ruling put Ledbetter's case, which was set to go to trial in May, on hold.
But Travis Sales, one of Merck's attorneys, and Tommy Fibich, one of Ledbetter's attorneys, both said Wilson had previously told lawyers in the case that such a decision would put all Texas cases on hold until appeals courts rule on the issue.
Wilson, who is presiding over all Vioxx lawsuits filed in Texas, said in his ruling that virtually all the Texas cases allege that Merck failed to provide an adequate warning.
"The court got it right," Sales said. "It goes to the heart of what Merck has always said. Merck gave proper information to the FDA and the FDA made proper labeling decisions based on what was there at the time."
Fibich said although the judge ordered an expedited appeal in the case, he thinks that process could still take up to two years to complete. "Meanwhile all those Texas cases will sit there and nobody is going to get their day in court," he said.
Vioxx, an arthritis pain reliever, was pulled from the market in September 2004, when a study showed it could double the risk of heart attack or stroke if taken more than 18 months.
Whitehouse Station, N.J.-based Merck said it now faces 27,250 personal injury lawsuits over Vioxx, including 45,700 plaintiff groups.
The company is sticking by its plan of defending each of thousands of claims over Vioxx rather than settling the suits.
Wilson said in his ruling that for Ledbetter to win her case under Texas law, she would have to show that Merck had withheld or misrepresented information required by the FDA when it approved the drug or that such information was related to her injury.
Wilson said the FDA had not made any determination that Merck withheld or misrepresented information concerning Vioxx.
Sales said federal law pre-empts part of the Texas statute from 2003.
"We think the court looked at this very carefully," Sales said. "Texas courts should not be second guessing the FDA on these issues."
Ledbetter, a 62-year-old woman from Elmendorf, just southeast of San Antonio, suffered a heart attack in May 2004.
"We think the court has made an erroneous ruling," Fibich said. "The effect of his ruling is that it immunizes manufacturers that lie and mislead the FDA."
Fibich said even if appeals courts uphold the judge's ruling, his client and other plaintiffs have two other claims against Merck they can still try to prove in court: negligence and product design.
"I think they are all three good claims," he said. "If I had to pick just one, it would be the failure to warn claim. But in all the cases where plaintiffs have prevailed against Merck, juries have found in favor of the product design and negligence claims."
Fibich said the case will probably go all the way up to the Texas Supreme Court and he is looking at whether he can file any appeals in federal court.
This summary is based on a report issued moments ago by Harris Martin Publishing:
An Illinois state court jury has found Merck & Co. Inc. to be free of negligence in the Midwest's first Vioxx trial, rejecting a widower's claims that the company failed to adequately warn his wife's physician about the alleged dangers of Vioxx and that Vioxx caused her fatal 2003 heart attack.
Frank Schwaller claimed that his wife, Patricia Schwaller, suffered a fatal heart attack on August. 8, 2003, at age 52 as a result of using Vioxx for approximately 20 months. Merck maintained that it acted swiftly to try to warn doctors that Vioxx carried possibly dangerous side effects and that Schwaller's other health problems might better explain her death.
In a retrial of a case involving an Idaho postal worker's heart attack, an Atlantic City, New Jersey jury ruled today that Vioxx did contribute to the death of the plaintiff. This reversed the verdict of the original trial, and the jury awarded the plaintiff $20 million in damages. The jury will now decide whether Merck should be forced to pay punitive damages in addition to the $20 million in actual damages.
This latest verdict brings the "score" to Merck 9, Plaintiffs 5 in Vioxx trials around the country.
As reported in the Houston Chronicle, federal Judge Eldon Fallon decided today that the more than 7000 pending Vioxx lawsuits cannot be combined into one single class-action lawsuit. The plaintiffs generally preferred the simplicity and reduced expenses of a single suit, but the manufacturer of Vioxx, Merck, preferred the complexity of many separate lawsuits. From the article:
"We are pleased with the decision," said Kent Jarrell, a spokesman for Merck, which wants to try every suit individually. He said the company is putting together a more detailed response.
Merck has won six cases, three each in federal and various state district courts. A fourth state court victory was overturned and a retrial ordered. The company has lost one federal case and three in state courts.
Russ Herman, chairman of a committee of plaintiffs' lawyers, said he had expected the decision. "Federal jurisprudence currently tracks an industry theory that thousands of injured people should litigate individually in order to give a single wrongful manufacturer due process," he said.
Fallon's 25-page ruling rejected the plaintiffs' proposal to try all the cases under the laws in New Jersey. They argued that the company should reasonably expect to follow the laws of the state where it is headquartered.
"While this is true, it is just as true that Merck, an international corporation providing its drugs to every state in the nation, should expect to abide by every jurisdiction's laws," Fallon wrote.
Merck, the manufacturer of Vioxx, won the latest Vioxx trial this week in federal court in New Orleans. That gives Merck five wins and four losses in the first ten Vioxx trials. One other Merck victory has been overturned, and is on appeal.
As allowed in the federal multi-case system, this latest trial was a case that Merck selected to try, and it was considered a very good case for Merck from the beginning. Kentucky Plaintiff Robert Smith took Vioxx for about four months before his heart attack in 2003.
Philip Beck, Merck's lead trial lawyer in the case, said Smith had multiple risk factors for a heart attack, including high blood pressure and obesity. He also said Smith's strenuous physical activity on the day of his heart attack -- shovelling snow for almost an hour -- was a well-known trigger for such events.
The next Vioxx trial is scheduled for the end of October, also in New Orleans federal court, followed by a trial involving two plaintiffs in California. In November, trials are to begin in Texas and Alabama, and then again in federal court in New Orleans. So far, Merck has shown no indication whatsoever that it plans to make settlement offers on any Vioxx claims.
In a partial setback for Vioxx plaintiffs, U.S. District Judge Eldon E. Fallon ruled the jury's August 17, 2006, verdict in the Barnett v. Merck trial had to be overturned, and a new trial held. The judge said the liability portion of the verdict was reasonable, but that the damage award of $50 million was excessive.
The jury in the current federal Vioxx trial has returned a verdict in favor of the plaintiff in the amount of $50,000,000. That is for actual damages. The jury will now deliberate on the punitive damages portion of the verdict.
The jury held that Merck was negligent in warning Jerry Barnett and his doctors about the risks of Vioxx.
This brings the Vioxx trial count to five wins for Merck and four losses.
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