The diet drug and implant experiences show how Vioxx claims might play out in the courts. Each case involved thousands of claimants with injuries ranging from minor to severe. Lower level victims can often benefit from a common resolution plan, but the seriously injured can be held hostage by restrictive rules that may not provide a fair remedy. Although the right to a jury trial is protected, serious claims may have to wait years and must comply with complex pre-trial options before they get their day in court. Because federal oversight limits how individual cases proceed, many Vioxx victims may choose to file in state court and proceed against pharmacies or health care providers. Claims relate to failure to warn, negligence, strict liability, and disregard for consumer safety. See, Wells v. Ortho Pharmaceutical Corp., 615 F.Supp. 262 (ND GA 1985).

Once a claim is discovered, it must be brought within a certain period of time after injuries are manifest (two years in Georgia). In a claim against a doctor, the bar date may run from the date of negligent therapy. See, O.C.G.A. Sec. 9-3-71. The decision to file requires a full legal-medical review. If a victim is a class member, an action will only involve filing a claim form. Vioxx claims in federal court will probably be supervised by an MDL judge. In serious cases, a plaintiff may want to keep the case in state court for the best result, with the right to utilize rulings from the federal system. In many mass tort cases, awards in state jury trials have been much larger than values in MDL settlement plans.

Merck will be expected to take an aggressive stance and focus on alternative medical causes related to heart disease. Because heart disease involves genetic and life-style factors, Merck will challenge the proximate cause between Vioxx and cardiovascular events alleged in a claimant's suit. The company may also attempt to limit mass filings by fighting minor or problematic cases and paying fair compensation in viable, serious claims to avoid highly publicized jury awards and punitive damages.

One critical factor which will determine the size of the Vioxx litigation and the ultimate exposure of Merck will be the number of existing claims and the extent of future liability. Because the drug may clear out of the system after 10 days of usage, serious claims (heart attacks, death, ischemic strokes) may be identifiable in the first stage of litigation. Also, plaintiff's lawyers may focus on catastrophic injuries and not bundle serious claims with minor ones. In other drug cases, such as Baycol, the defense made it difficult to prosecute mid-level injury claims because of the cost of litigation versus succeeding at trial. The cost-benefit analysis may limit the total number of Vioxx cases with the majority of claims being pursued falling in serious injury categories. If this transpires, the litigation may be more manageable than prior mass tort cases, such as Fen-Phen. 

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