Overview of Vioxx Litigation

Claims against Merck & Co., Inc. (Merck) over Vioxx began to be filed in 2001, and really took off after Merck voluntarily removed Vioxx from the market in September 2004. In total, almost 27,000 lawsuits have been filed against the company. Merck's strategy was to fight every case. This is contrary to what many companies do when faced with an extremely large number of claims — try to obtain a quick settlement, even if it is expensive. The following article highlights some of the major decisions leading up to the November 2007 settlement. If you have questions about the Vioxx litigation, talk to an experienced product liability attorney.

Key Decisions

The cases against Merck that made it to trial all involved heart attack claims. Some plaintiffs dropped their claims before trial because of difficult facts and a lack of evidence showing that Vioxx was actually used by the plaintiff. Another hurdle for plaintiffs was proving causation — establishing that Vioxx and not some other factor, such as a previous medical condition, actually caused their injuries.

Because of the vast number of cases against Merck, many cases were consolidated in several jurisdictions, including New Jersey state court and the federal Eastern District of Louisiana. Approximately 21 Vioxx cases made it to trial, and fifteen cases ended in Merck's favor or with hung juries. In the first case, the plaintiff, the widow of Robert Ernst who died after taking Vioxx, was awarded over $200 million. Mr. Ernst had taken Vioxx for seven months before he died of a heart arrhythmia in 2001.

April 2006: A New Jersey jury awarded a total of $13.5 million ($4.5 million in compensatory damages and $9 million in punitive damages) to a 77-year-old plaintiff who had suffered a heart attack. The jury found that Merck had failed to properly warn of Vioxx's safety risk. The jury had cleared Merck of liability in connection with a second plaintiff's heart attack, finding that Vioxx was not a factor in the 60-year-old's illness.

April 2006: A Texas jury awarded the family of a 71-year-old plaintiff who had used Vioxx for approximately one month prior to his heart attack and death $32 million ($7M as compensatory damages and $25M as punitive damages).

July 2006: A New Jersey jury cleared Merck of liability for the heart attack of a 68-year-old woman who had taken Vioxx for approximately two years.

August 2006: A Los Angeles jury determined that Merck was not liable for an elderly man's heart problems, and found that Merck did not wrongfully conceal information about the painkiller. The 71-year-old plaintiff began using Vioxx in 1999, and suffered a heart attack in 2001.

August 2006: A federal jury in New Orleans found that Merck failed to warn doctors about the risks of Vioxx and awarded a retired FBI agent $51 million in damages, arising from a heart attack he suffered in 2002 after taking the drug for several years. A federal judge later threw out a $50 million compensatory damage award and ordered a new trial on damages. The verdict will stand, but the judge found the amount of the award to be "grossly excessive" under the circumstances of the case.

November 2006: A federal jury in New Orleans cleared Merck of any liability in connection with a heart attack suffered by a 64-year-old Utah man who had taken Vioxx for about 11 months.

November 2006: A US District Court judge in New Orleans denied class action status to thousands of federal lawsuits that alleged a link between Vioxx and heart attacks suffered by people who used the painkiller.

December 2006: A federal jury in New Orleans rejected a Tennessee man's claim that Merck failed to adequately warn his doctors about the risks of Vioxx, which he blamed for a heart attack he suffered in 2003.

January 2007: A New Jersey appeals court decision may open the door to a class action lawsuit against Merck by former Vioxx patients who are currently in good health, but who want the drug company to pay their medical monitoring costs. The Appellate Division of the Superior Court of New Jersey overturned a lower court's dismissal of the plaintiffs' claims, saying that those claims were "prematurely terminated."

March 2007: A New Jersey jury awarded $47.5 million ($20 million in compensatory damages and $27.5 million in punitive damages) to a retired Idaho postal worker and his wife, finding that Merck failed to provide adequate warnings about the painkiller's risks, and that Vioxx was a factor in plaintiff Frederick Humeston's 2001 heart attack. This decision was part of a two-plaintiff, multi-phase lawsuit. In the first phase, the jury had determined that the plaintiffs had failed to prove that Merck did not provide adequate warnings about the risk of heart attack prior to September 2002, but did fail to provide adequate warnings prior to September 2001 when Mr. Humeston had the heart attack.

March 2007: A jury in Madison County, Missouri, cleared Merck of liability in a lawsuit in which Vioxx was alleged to have caused a 52-year-old woman's fatal heart attack. As part of the decision, the jury concluded that the plaintiff's 2003 heart attack was caused in part by her obesity and other health problems.

November 2007: Merck announced that it had entered into a settlement agreement in which it agreed to pay $4.85 billion into a settlement fund to resolve qualifying claims.

Conclusion

Even with the November 2007 settlement, Merck has stated that it will continue to defend Vioxx in every case that does not qualify for the settlement process. Further, it is likely that appeals could continue for the next few years. If you have a question about Vioxx, talk to a product liability attorney.

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