Merck Faces Surge of New Vioxx Lawsuits at Filing Deadline

By | October 17, 2005

Eight weeks after a Texas jury handed drug maker Merck & Co. a $253 million verdict in its first Vioxx product liability trial, the number of Vioxx lawsuits is rising like floodwater.

More than 1,000 new Vioxx cases have been filed in New Jersey alone since late August, including 800 in September, and over 500 new cases are pending in federal court.

Based on interviews by The Associated Press, Whitehouse Station-based Merck now faces well over 6,500 Vioxx lawsuits, up from about 5,000 in the company’s last status report.

The new total includes 3,481 cases filed and docketed as of last Thursday morning in New Jersey, plus 2,200 federal cases filed and about 425 others recently transferred to federal court for the Eastern District of Louisiana, according to court personnel. Merck has said another 450 cases were pending in other state courts as of Aug. 15.

Plaintiff lawyers say those numbers are probably just a drop in the bucket.

Nearly all are product liability cases, often called personal injury suits. Attorneys and New Jersey court personnel say many were filed because plaintiffs in a handful of states faced a deadline of one year from Sept. 30, 2004 when Merck pulled the blockbuster painkiller from the market after research showed it doubled risk of heart attacks and strokes with long-term use.

Some new cases were triggered by the huge Texas verdict, which will be slashed under that state’s caps on punitive damages, and other by lawyers hurrying up to file suits so they can get in line for an eventual jury trial or settlement, lawyers say.

“There will be an avalanche at two years,” the end of the statute of limitations in many states, predicts plaintiff attorney Chris Seeger.

Seeger, the lead lawyer for plaintiff Frederick “Mike” Humeston, a Boise, Idaho-based postal worker, in the second Vioxx trial, which began last month in Atlantic City, expects to see 10,000 to 15,000 new cases filed in New Jersey through next September.

Whether he wins or loses the current case, being heard by Superior Court Judge Carol E. Higbee, could influence the number of future suits, Seeger added. His New York firm already represents more than 500 plaintiffs, but less than 300 have filed suits to date.

Merck officials don’t plan to update their count on lawsuits filed until a status conference on federal cases, set for Oct. 27.

“The new filings are not unexpected and do not change our strategy,” Merck spokesman Kent Jarrell said via e-mail. “Right now we are concentrating on defending each and every case we face.”

New Jersey is the most popular state venue because Merck cannot move cases in its home state to federal court, which plaintiff lawyers view as less friendly.

Like most states, New Jersey has a two-year statute of limitations, with the clock starting when the plaintiff first knew he or she had reason to sue. Attorneys are taking that kickoff to be the day Merck withdrew its $2.5 billion-a-year arthritis pill from the market, Sept. 30 2004.

States with a one-year filing deadline include Kentucky, Louisiana and Tennessee, according to Cherry Hill lawyer Mike Ferrara, who filed 48 suits in time to make the Sept. 30 deadline.

New York attorney Gary Douglas filed eight cases in New Jersey and 72 others in federal courts that follow their states’ deadlines under the wire.

Seeger, Ferrara and Douglas said that given the huge backlog in New Jersey, Higbee, who is overseeing every New Jersey case, needs to assign some to other judges and Merck must agree to settle the bulk of them.

“I think I’d be scheduled to try a case when I’m 432,” Douglas joked.

Seeger said it’s only a matter of time until Merck announces plans to settle some cases, although attorneys believe the company wants to see how the first ones play out before entering settlement talks.

The lawsuits generally allege Vioxx caused cardiovascular problems, including heart attacks, strokes and dangerous blood clots, or kidney damage or gastrointestinal bleeding. Most seek financial compensation, but some potential class-action suits seek medical monitoring for Vioxx users who have not yet suffered health problems.

Merck has set aside reserves of $675 million for its legal costs but it has not set up a fund to pay for settlements or jury awards.

Copyright 2005 Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

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