Vioxx rulings painful to plaintiffs

W. Mark Lanier, the Houston plaintiffs’ lawyer who represented Ernst, called the Texas ruling a “travesty that is masquerading as a proper decision.”
“It is as if they never read the record, but simply wrote the opinion off Merck’s brief,” he said.
Lanier said he intends to ask for a rehearing, and if that fails, to petition the Texas Supreme Court.
The Texas verdict was hailed as a major win for plaintiffs’ lawyers, but as the litigation wore on, Merck won defense verdicts in 11 out of 16 trials.
Vioxx was withdrawn from the market in 2004 after findings that it increased the risk of heart attack and stroke.
David Prince, a professor at William Mitchell College of Law in St. Paul, Minn. and co-author of the Products Liability Prof Blog (http://lawprofessors.typepad.com/products_liability), said the rulings in New Jersey and Texas may encourage holdouts to join a $4.85 billion settlement announced in November 2007 that has resolved most of the outstanding claims.
“The tea leaves aren’t looking good when it comes to Vioxx,” Prince said. “People who were sitting on the fence might decide to participate in the settlement.”
Merck extended the deadline for participating in the settlement until June 30. According to the company, about 95 percent of 50,000 eligible claimants have elected to participate.
Several experts said the New Jersey appellate ruling could impact other drug product liability suits because the court limited punitive damages and rejected consumer fraud claims.
Many of the nation’s drug manufacturers have their corporate headquarters in New Jersey, and rulings in that state are closely scrutinized by members of both the plaintiffs’ and defense bar.
“New Jersey is the nation’s medicine box,” said Mark Hermann, a partner with Jones Day in Chicago and co-author of the Drug and Device Law blog (http://druganddevicelaw.blogspot.com).
In McDarby, the court said federal law preempted an award of punitive damages under state law. The court did, however, affirm the jury’s $4.5 million compensatory damages award.
Citing a 2001 U.S. Supreme Court ruling (Buckman Co. v. Plaintiffs’ Legal Committee, 531 U.S. 341), the court agreed with Merck that McDarby’s punitive damages claim was preempted by federal law.
“Because the punitive damages provisions [of the state statute] impinge upon [federal law] … we find the principle of implied preemption … to be applicable here,” the court said.
Hermann said the ruling “means there are tons of [drug] lawsuits where there will be no punitive damages available.”
William Gage, a pharmaceutical product liability defense lawyer with Butler Snow in Jackson, Miss., said the decision could influence courts in other states with similar product liability statutes, such as Utah.
The other significant aspect of the New Jersey appellate ruling in McDarby was its finding that plaintiffs can no longer bring product
liability claims under New Jersey’s Consumer Fraud Act.
The jury in one of the New Jersey cases (Cona) concluded that Vioxx did not cause the plaintiff any physical injury, and did not award him any damages for his product liability claim. But because he had supposedly been misled into buying Vioxx, jurors awarded him $135 for the cost of the Vioxx, plus $2.27 million in attorney fees.
Plaintiffs’ lawyers have increasingly used consumer fraud claims as additional claims in product liability suits against drug manufacturers in many states. If other courts follow New Jersey’s ruling, it could dead-end that strategy, according to Gage.
The Vioxx rulings aside, the drug product liability decision that both defense and plaintiffs’ lawyers are waiting for will come from the U.S. Supreme Court next term(Wyeth v. Levine, No. 06-1249).
The court has agreed to decide whether FDA approval of a prescription drug’s label preempts a state law claim over how the drug was administered to patients.
A ruling in favor of preemption “would have a huge impact on litigation against drug manufacturers,” Prince said.
“Everyone is holding their breath,” Gage agreed.