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Vioxx Lawsuit Asks that Merck Pay for Medical Monitoring

Oct 26, 2007 | Parker Waichman Alonso LLP

Vioxx users, anxious that they could have unknowingly suffered health consequences from using the defective drug, have taken Vioxx maker Merck to court in New Jersey.   The former Vioxx users want Merck to pay for medical monitoring in order to insure that they have not suffered from a “silent heart attack” as a result of their Vioxx use.

Vioxx was pulled from the market by Merck three years ago after research indicated that it could double a patient’s risk of heart attacks and strokes.  Before the Vioxx recall, the arthritis drug had been one of Merck’s biggest selling drugs.  The recall came after a Food & Drug Administration analysis of patients using Vioxx linked the defective drug to more than 27,000 heart attacks or sudden cardiac deaths in the U.S. from 1999 through 2003.  

Now, New Jersey residents Robbie Traylor and Joseph Murray have asked the New Jersey Supreme Court to certify a class action for their Vioxx lawsuit, which seeks to have Merck pay for their medical monitoring.  Both took Vioxx for years, but are not exhibiting heart symptoms right now.  If certified a class action, the lawsuit would cover about 233,000 New Jersey Vioxx users; and if it is successful, Merck would have to pay out about $35 million for the medical testing. Each plaintiff covered by the class action would then be entitled to an EKG exam to see if they had an undetected heart attack.   According to the plaintiff’s attorneys, it is likely that about 1,800 of the 233,000 Vioxx users would discover that they suffered heart damage as the result of Vioxx.

For its part, Merck is claiming that such a lawsuit is not allowed under New Jersey’s product liability law.  Rather, the company’s attorneys argue that the state law only allows medical monitoring when there is evidence of a specific injury.   But the Vioxx users’ lawyers argued that without medical monitoring, many of the plaintiffs will never know if they suffered injuries from Vioxx side effects.  

Merck is facing more than 26,000 law suits filed by 47,000 plaintiffs as the result of Vioxx side effects.  In addition, the company might also have to defend 265 potential class action lawsuits.   Merck has also been sued by several states in an effort to recoup the money state health programs spent on Vioxx prescriptions.

Merck has said that it plans to fight each Vioxx lawsuit individually, and will appeal any case it looses.   Merck says that it had reserved $1.92 billion to fight Vioxx lawsuits, and has already spent around $1.2 billion.