A Summary of the Vioxx Lawsuits Coming Soon in New Jersey, Texas, and Louisiana

As is well-known by now, Merck & Co. lost its first Vioxx trial in a Texas state court last week, where the jury found that Vioxx was responsible for the death of Robert Ernst, and awarded his widow a resounding verdict of $253 million.

Merck is scheduled to defend itself this fall in three Vioxx cases set for trial in New Jersey, Texas, and Louisiana.  Here is a summary for each Vioxx lawsuit going to trial this fall, including a description of the plaintiff and Merck’s likely defense strategy at the respective trial.

The New Jersey Vioxx trial is scheduled to start September 12, 2005 in an Atlantic County state superior court, and is expected to last four to five weeks.  The plaintiff in that lawsuit is Frederick Humeston of Boise, Idaho, who alleges that his September 18, 2001 heart attack was caused by Vioxx. Mr. Humeston was 56 at the time of his heart attack, which he survived.  According to his attorney, Mr. Humeston started taking Vioxx regularly on July 16, 2001 — two months before his heart attack.

Merck will likely defend this New Jersey Vioxx case by asserting that Mr. Humeston had numerous pre-existing risk factors, including his age, male gender, cholesterol problems, borderline hypertension, obesity, and a lack of physical activity. The period of Vioxx use by the plaintiff will also be a basis for Merck’s contention that this was a heart attack waiting to happen, and it had nothing to do with Vioxx.

The Texas Vioxx trial is scheduled to begin in October 2005 in a state court in Edinburgh, Texas.  The plaintiffs is that case will be the family of Anna Marie Guerra, who died on May 6, 2001 at age 39.  Ms. Guerra started taking Vioxx in April 2001, such that her use of Vioxx is only about one month.  Furthermore, Ms. Guerra reportedly was overweight and there is a family history of heart disease.

The Merck attorneys for this Texas Vioxx case will likely emphasis the pre-existing medical conditions and the short duration of Vioxx use.  Of course, the specter of the recent massive jury verdict in the Ernst case will be hanging over their heads as they attempt to defend the drug company in this second Texas Vioxx trial.

The Vioxx case planned to start on November 28, 2005 in Louisiana is the first federal court Vioxx trial.  The case will be heard by a jury sitting in New Orleans, and this case is part of the federal court Multi-district Litigation ("MDL").  The Plaintiff is Evelyn Irvin, who is suing Merck for the wrongful death of her late husband, Richard Irvin Jr., who resided in Florida.  Mr. Irvin died in May 2001 of a heart attack after taking Vioxx for just one month.

As for the anticipated defense in this case, Merck will likely focus on the short time period, one month, that Mr. Irvin took Vioxx. Recall that back in September 2004, the study that prompted Merck to withdraw Vioxx from the market had shown there was a higher risk of suffering a Vioxx-related heart attack only after use of Vioxx for 18 months or more.

Notably, the plaintiffs’ attorneys for all three Vioxx cases, above, maintain that there is sufficient medical evidence available for them to successfully show a jury that short-term and long-term usage of Vioxx can cause a heart attack.

We will keep you posted on any developments regarding these Vioxx trial dates.

(Posted by: Tom Lamb)