Vioxx Lawsuit
On September 30, 2004, US drug company Merck announced the immediate withdrawal of its popular painkiller Vioxx. Citing an "increased relative risk for confirmed cardiovascular events, such as heart attack and stroke" for the withdrawal, Merck soon received thousands of lawsuits.
Taken by around 20 million people, Vioxx was one of the leading arthritis painkillers on the market until its withdrawal in September 2004. To date, attorneys have filed over 10,000 lawsuits and 190 class action lawsuits across the US as a result of health implications and deaths allegedly caused by Vioxx.
Vioxx, also known as Ceoxx and Ceeoxx, was first approved by the US Food and Drug Administration (FDA) on May 20, 1999. The active ingredient, Rofecoxib, was said to treat osteoarthritis, acute pain conditions, and dysmenorrhoea with far fewer side effects than similar drugs. However, what later emerged is that Vioxx could potentially cause serious cardiovascular problems, including heart attack and stroke.
The first lawsuit was won by the plaintiff in August 2005, with a Texas jury voting 10-2 to hold Merck liable for the death of a former user of Vioxx. This landmark case opened up the possibility of many more lawsuits against Merck, and indeed many more successful cases have since been filed. In anticipation of many legal battles, Merck has reserved $1.64 billion in its Vioxx legal defense fund. With only a small percentage of cases having come to court, it seems that there is still a very long road ahead for Merck and the alleged victims of Vioxx.
The first of many cases against Merck in the Vioxx scandal, this case involved the widow of a user of the drug. Represented by Vioxx attorney, Mark Lanier, Ms Ernst filed the first Vioxx claim, which went to court in August 2005. The Texas jury found Merck to be negligent in the death of 59-year-old Robert Ernst and was ordered to pay $253.4 million. Mark Lanier is now considered to be one of the most successful Vioxx lawyers, and has gone on to represent more victims of the drug.
Robert Ernst had started using Vioxx eight months prior to his death and regularly participated in sports. The inquest into his death ruled that arrhythmia, or irregular heartbeat, was the cause - and this was attributed to Vioxx by the attorney. The case lasted five weeks, during which the twelve-member jury heard compelling evidence against Merck and their Vioxx drug. The Brazoria County jurors awarded the plaintiff $24 million in actual, or compensatory, damages, and then another $229 million in punitive damages, for a total of around $253 million. Merck lawyers, however, vowed to appeal the ruling stating that, "We believe that the plaintiff did not meet the standard set by Texas law to prove Vioxx caused Mr. Ernst's death."
Following the revelations that Vioxx could have been the cause behind hundreds of its users’ heart attacks and strokes, many victims organized themselves into "class actions.” A class action lawsuit, under United States law, allows a number of people to pursue a case that asks common questions of law and fact. In simple terms, a class action allows a group of people to amalgamate their separate claims as one lawsuit against a common defendant. This kind of lawsuit is often used in the aftermath of airline accidents, public disasters, and other incidents involving many plaintiffs.
Following the landmark win of the first Merck Vioxx lawsuit, many alleged victims organized themselves into class actions, with joint representation against Merck. The benefits of these class actions resulted in lower fees from the Vioxx lawyers and stronger cases with combined evidence. However, in November 2006, Judge Eldon Fallon refused a request to combine 7,000 lawsuits into one single class action against Merck. Judge Fallon said that each of the lawsuits would needed to be filed separately as each case was unique, despite the fact that most victims had suffered either a heart attack or a stroke. This came as good news to Merck, who had, as of November 2006, won 7 out of 11 cases brought against them in Vioxx lawsuits.
The sixth trial to go to court, this proved to be one of the most controversial of the Merck Vioxx lawsuits. Aged 71 at his time of death, Mr. Garza had been using Vioxx for around a week and had previously had a heart attack in 1981. The history of heart problems and the fact that Mr. Garza was 71 and had only used Vioxx for around a week, were some of the criticisms of this trial from the Merck lawyers.
Despite the indication that natural causes could have been a factor in the death of Mr. Garza, his family was awarded $25 million in punitive damages and $7 million in compensatory damages. Attorneys argued that despite Garza’s pre-existing health problems, his veins had been cleared and a stress test showed less than a 2 percent risk of heart attack within a year.
The awards are likely to be reduced, though, thanks to state caps placed on damages. Because Garza was retired at the time of his death, no economic compensation was awarded to the family. The state of Texas has long been criticized as having an Anti-Pharmaceutical bias, and this was another matter that was raised in the aftermath of the Garza v Merck trial.
This trial, opening on March 1, 2007, saw Merck attorneys explaining that the company acted quickly in warning doctors and consumers of the potentially fatal side effects of Vioxx. Merck attorneys denied the claims of Patricia Schwaller's family that her fatal heart attack was caused by Vioxx, pointing out that Mrs. Schwaller was in a high risk group for heart attacks. Suffering from obesity, diabetes, high blood pressure, and a "sedentary lifestyle,” Merck representatives believe that Mrs. Schwaller had other contributing factors to her death. Mrs. Schwaller collapsed and died in 2003 after taking Vioxx.
Schwaller attorney, Andy Birchfield, complained to jurors that Merck routinely put profits ahead of consumer safety, denying the possible health risks before finally withdrawing the drug in 2004. Merck, however, complained that some witnesses may have other reasons for testifying against them. Attorneys for the family have said Schwaller had been taking Vioxx for about 20 months and had no previous heart attacks, strokes, or symptoms of heart disease before her fatal collapse. Although, as in other cases, Merck is fighting to prove that other factors contributed to the victim's death.
In April 2006, Merck were ordered to pay damages to Mr. McDarby, a former Vioxx user who suffered a heart attack and is now confined to a wheelchair. Mr. McDarby's attorney, Robert Gordon, convinced the jury that Merck was negligent, leading to his client's heart attack. This was seen as a milestone in the fight against Merck, as juries had previously been unconvinced that Merck had been negligent. The company vowed to appeal, stating that much of the information that had been given to the jury had been irrelevant and prejudicial against Merck, and this had influenced the decision.
Mr. McDarby was awarded $9 million, leading analysts to speculate that this case was a turning point and that the level of the award showed the belief that Merck had willingly withheld information regarding the drug. Merck, however, denied this and argued that the information presented during the trial did not prove that Vioxx was the cause of Mr. McDarby's heart attack.
This case won great respect for Mr. Gordon and his law firm, Weitz & Luxenberg. As of April 2006, the firm had filed 1000 Vioxx cases and was preparing a further 1500 cases that it plans to file. The case is also said to have influenced others to file a lawsuit against Merck, having seen that the jury could be persuaded that negligence was an issue.
In another Vioxx claim in November 2005, Merck was cleared of any wrongdoing by an Atlantic City jury who said that enough adequate warning of health risks had been given to consumers. The news came as a blow to Vioxx lawyers hoping to claim against Merck. Lawyers representing Mr. Humeston claimed that Vioxx was responsible for his fatal heart attack. Mr. Humeston reported taking two Vioxx tablets after suffering a pain, hours after which he suffered a heart attack. Mr. Humeston's doctors blamed the heart attack on Vioxx. Humeston, a regular hiker, had clear arteries and no history of heart problems before taking Vioxx.
The jury in this case voted 3-1 that Merck had provided enough warning to doctors and voted unanimously on three counts that Merck did not mislead doctors about the drug's safety. Merck lead attorney, Jim Fitzpatrick, stated his belief that the evidence shows that short-term use of Vioxx carried a far lower risk of heart attack. Vioxx attorney, Mark Lanier, claimed that the plaintiff is clearly the underdog in a Merck Vioxx lawsuit, implying that the pharmaceutical company had the resources to successfully fight any claims.
This trial relied on the testimony of medical professionals who stated that the company believed Vioxx was safe for the heart before the drug was pulled from the market. This case was closely watched by plaintiffs and lawyers of similar cases and the outcome could, indeed, have consequences for future trials.
Merck was cleared of any wrongdoing or negligence in a February 2006 case, following the death of 53-year-old Florida resident, Richard Irvin. Represented by attorney Jere Beasly, this Vioxx claim was dismissed when the jury believed that not enough evidence existed to imply negligence on Merck's side. The firm argued that there was never any proven link between Vioxx painkillers and heart attacks. Their argument was aided by the fact that Mr. Irvin was shown to be at a high risk of heart attack thanks to his age, diet, and gender. Mr. Irvin had been taking Vioxx for around one month prior to his death.
The jury did, however, hear about a 2000 drug test named VIGOR, which showed that users of Vioxx were five times more likely to have a heart attack than patients using naproxen, another popular painkiller. Merck had learned of this drug test in 2000, but had not acted to withdraw Vioxx until 2004. The company was criticized for continuing its ad campaign in the United States and promoting Vioxx in the face of this evidence. Merck denied any wrongdoing and said that the difference between its product and naproxen was probably down to naxproxen's ability to protect the heart. The company did report the finding of the VIGOR study to US Food and Drug Administration (FDA).
If you feel you have a valid claim against Merck after using Vioxx and experiencing a heart attack or stroke, you may wish to begin looking for an attorney. This should be a carefully thought out decision. Taking on a company with the resources of Merck could be the beginning of a long and expensive journey to find justice. Before meeting with a lawyer, you may wish to consult your doctor and gain his medical opinion. Consider how much evidence you have against Merck, and if you are sure that you want to proceed, then brace yourself for a long wait. With thousands of cases to be tried, you could be waiting a substantial amount of time before receiving any compensation from Merck... and that's if you win.
There are various starting points when looking for an attorney to represent your case. Bar associations will often offer a referral service and will help you locate a lawyer, but keep in mind that many of these lawyers will not hold as much as experience as some others. The Martindale-Hubbell Law Directory is a United States directory, available in most public libraries. The directory contains contact details of many US lawyers, making it a good starting point. However, the best starting point is probably the Internet. With access to hundreds and thousands of articles, you can research a legal team before signing anything.
Although expensive, it is probably best to attempt to secure an attorney with good experience. Vioxx attorneys, such as Mark Lanier, will have plenty of experience in this area and will best advise you on how to proceed.