Merck Gets Another Vioxx WinJun 6, 2008 | Parker Waichman LLP
Merck & Co. was on the winning end of another Vioxx court decision this week, the third favorable ruling involving the deadly painkiller in the past month. This time, the New Jersey Supreme Court voted 5-1 that Vioxx users who had not shown signs of an injury are not entitled to medical monitoring paid for by Merck. The ruling effectively dismisses a class action lawsuit filed by former Vioxx users seeking to have Merck cover diagnostic testing that might uncover undetected Vioxx injuries.
Vioxx was approved for use in 1999, and quickly became a blockbuster for Merck, with annual sales of $2.5 billion. But in 2004, the Food & Drug Administration (FDA) ordered the painkiller off the market after an 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. The Vioxx recall led to thousands of lawsuits against Merck.
On Wednesday, the New Jersey high court ruled that since the Vioxx users involved in the class action lawsuit were not claiming injury, they "cannot satisfy the definition of harm" in seeking medical monitoring under the state's Product Liability Act.
One justice disagreed with the majority. In her dissent, Justice Virginia A. Long wrote that that the New Jersey Products Liability Act recognized that "increased risk of injury that creates a need for medical surveillance" is a recognizable harm.
It has been a good couple of weeks for Merck, which has now racked up three Vioxx victories since the end of May. In another New Jersey case, the Superior Court's Appellate Division reduced a Vioxx jury award by $13 million when it ruled that the plaintiff in the case was not entitled to punitive damages, and that the jury should not have been allowed to find Merck guilty of consumer fraud. The appeals court did, however, allow the jury's $4.5 million compensatory damage award to stand.
That same week, a Texas appeals court overturned a $26 million jury verdict against Merck in a lawsuit brought by a woman whose husband died in 2001 after taking Vioxx. In reversing the verdict, the appeals court found that plaintiff had not proved that Vioxx caused the man’s death. In doing so, the three appeals court judges reversed the verdict of a jury, throwing out the views of the plaintiff’s experts.
Despite these victories, Merck's multi-billion dollar proposed Vioxx settlement announced in November is still on track. The $4.85 billion settlement covers about 50,000 people who have sued Merck claiming that they or their family members had heart attacks or strokes after taking Vioxx. Plaintiffs face a June 30 deadline to agree to the settlement, which will result in an average payment of roughly $100,000 a plaintiff before legal fees, or to opt out and continue their lawsuits. Merck has said that 95 percent of eligible plaintiffs had agreed to the deal and that the company was nearly certain it will go forward.