Merck Gets Two Vioxx Victories, But Settlement Still on TrackMay 30, 2008 | Parker Waichman LLP
Vioxx maker Merck & Co. won two court victories this week, in Texas and New Jersey, as appeals courts reversed rulings in Vioxx lawsuits. However, the Merck victories won't affect the $4.85 billion settlement the company struck with thousands of Vioxx victims last November.
Vioxx was approved for use in 1999, and quickly became a blockbuster for Merck, with annual sales of $2.5 billion. 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.
In Texas, a state appeals court overturned a $26 million jury verdict against Merck in a lawsuit brought by Carol Ernst, whose husband, Robert, died in 2001 after taking Vioxx. In reversing the verdict, the appeals court found that plaintiffs had not proved that Vioxx cause the man's death. In doing so, the three appeals court judges reversed the verdict of a jury, throwing out the views of the plaintiffs’ experts.
In New Jersey, an appeals court reduced a verdict in another Vioxx case. The court ruled that the jury should not have been allowed to award punitive damages against Merck or to find that Merck had committed consumer fraud. Only compensatory damages of $4.5 million were permitted.
The rulings brought immediate criticism from plaintiffs' lawyers involved in the Vioxx case, as well as promises to appeal. One of the attorneys characterized the Texas ruling as "judicial activism for corporate America," and said the opinion of the panel in the Texas case was " "cursory" and "seems to construe the evidence in favor of the defendant and leaves out all of the evidence that supports the verdict."
However, lawyers involved in the New Jersey Vioxx lawsuit were pleased that the court there let the damage award stand. They noted that this is the first time an appeals court has ruled that federal statutes and rules do not pre-empt claims brought under a state products liability law for a FDA-approved drug that further research shows may have dangerous side effects.
Recently, drug and device makers have claimed that FDA approval bars state lawsuits against defective medications and medical devices. Recently, the US Supreme Court ruled in favor medical device makers in a pre-emption case involving Medtronic Inc., and the court is set to consider pre-emption for drug makers next fall.
The rulings will not affect the multi-billion settlement Merck offered Vioxx plaintiffs in November. The 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.