Not many people have heard of Dr. Eric Topol. He is a world-renowned cardiologist at the Cleveland Clinic. And he knows a little bit about heart diseases, as you can guess. In the Vioxx controversy, he had a very important role to play. He was one of the few people, apart from Dr. David Graham, who warned of the dangers of the drug very early on. However, when Merck announced that it was suspending the sales of the painkiller, he was attacked by Fortune magazine and his credibility questioned because he was also advising a group of investors at the time. In other words, the magazine argued that he had a conflict of interest and that is why his opinion did not count. Eventually he quit from his part-time role as an advisor but everything that he had been saying for years was proved to be correct.

That sets a good background for discussion about another character in the ongoing Vioxx litigation - Edward Scolnick, the former chief scientist at Merck. In many ways he was instrumental in the launch of the drug and its subsequent marketing. During the recent trial in Carol Ernst vs. Merck, another company scientist Nancy Santanello acknowledged that Scolnick raised concerns as early as 1998 that Vioxx might cause heart attacks and strokes.

Now you might expect that since the chief scientist of the company was concerned, he would convince the top management to pull the drug off the shelves. But no one knows what happened and what was said and done, but the drug was on the market for about six more years hurting about 140,000 Americans and killing about 60,000. What Scolnick did do though was sell his stock in the company. Not just a few shares but worth as much as $32 million. It will be hard to prove if he did anything illegal but he clearly understood that Vioxx could bring Merck down. And he was absolultely right.

Now can this piece of evidence be presented in the Humeston vs. Merck trial scheduled to star soon in Atlantic City? A decision is still awaited from Judge Carol Higbee. Chris Seeger, the attorney for Mike Humeston wants to present the evidence and Merck is opposing it.

Recommended article: Should you settle or go to trial?

While we had reported earlier that the banned drugs Vioxx and Bextra are available in India, there are other countries that are doing the same. According to Reuters, Kenya is investigating that generic versions of Vioxx are being sold by pharmacies there. The Pharmacy and Poisons Board of Kenya is sending out inspectors to check on pharmacies that are selling them and legal action is being taken against them.

While Vioxx was recalled in September of 2004 worldwide, the drug regulatory agencies in other countries took their own time in announcing the withdrawals and in enforcing the decision. For instance, in Kenya, the decision was announced as late as June 2005.

Vioxx and Bextra present very interesting challenges before drug regulators and patients. While both drugs have been officially recalled, both Merck and Pfizer stand by their safety and want to sell them again. In a very bizarre development, a panel constituted by the FDA in the US and another similar panel organized by Health Canada recommended that both drugs are safe enough to be on the market.

The patients that took either of the drugs are not so sure though. As many as 5,000 lawsuits have been filed against Merck. The company was also recently found guilty of causing the death of Robert Ernst who took Vioxx.

Recommended article: Merck to face second lawsuit from Mike Humeston

Last week we had reported that Merck had filed a request for a delay in the trial of the lawsuit brought by Frederick M Humeston since it was afraid that due to a lot of negative publicity about the firm after it lost the lawsuit by Carol Ernst.

According to news reports, Judge Carol Higbee has rejected Merck's request. In other words, the trial will begin next month with the jury selection scheduled for September 12.

Everyone is closely watching this particular case since the company is based in New Jersey and it is expected the jury may be more lenient. The Texas jurors have been widely criticized for being too harsh on the company, slapping it with a quarter billion dollar payment (though it will eventually be reduced).

Since losing the case in Texas, as the number of lawsuits has rapidly grown, the company is already talking about settling some cases.

Recommended article: French Vioxx users file class action lawsuit against Merck

Kenneth B. Moll & Associates are at it again - helping the Vioxx victims outside the US sue Merck in the US. The overseas plaintiffs are realizing that the fastest way to get justice is to sue the company where it is based rather than engaging it in their home countries.

Now the law firm has filed a class action lawsuit on behalf of French patients who have been injured after taking the painkiller that was recalled after reports of 140,000 injuries and 60,000 deaths in the US. Since the recall last year only one case has gone to trial and the company has already lost it. Merck is already talking about settling some cases out of court.

"Countless individuals in France and around the world have suffered severe and fatal injuries which could have been avoided if Merck had acted responsibly," says Kenneth B. Moll, the lead attorney at the firm who is handling the cases. The firm has also helped victims in England, Italy and Canada sue Merck.

The number of lawsuits against the company has exploded since the verdict in the Carol Ernst case where not only was Merck found guilty of causing the death of Robert Ernst but the jury also awarded over a quarter billion dollars to his widow Carol Ernst. While the award will eventually be reduced to $26 million, Kenneth Moll says, ""The verdict clearly shows Merck's culpability in their decision to put profits ahead of the safety of their consumers."

Recommended article: Should you settle your lawsuit or go to trial?

In Vioxx litigation news, there is not much to report during the weekend, but the announcement by Merck that it is now willing to settle some cases out of court caught many analysts by surprise. But remember that at this time, Merck is still saying that it will not enter into a global settlement.

But how true is this statement? Is Merck simply saying something now and will change it later on? Isn't this what Wyeth said early on in the fen-phen lawsuits but then settled all the lawsuits?

Indeed, that is exactly the case. If Merck were to say that it wants to have a global settlement now, there will be a flood of plaintiffs. What the company wants to do is to settle those cases that it will definitely lose. Then it wants to fight the weak cases so that it will claim victory and mislead the Wall Street analysts who generally tend to give companies the benefit of doubt. Then it will wait for the deadline for suing Merck pass. After that is is very likely to announce a global settlement. That is exactly what Stephen Simpson, CFA writes on Fool, "Ultimately, I think Merck may still consider a global settlement once the window for new filings closes and the company can better estimate the damages." After no reasonable person expects Merck to fight thousands of lawsuits individually for the next decade.

So what should you do?

Talk to you attorney about your options. Generally speaking, if you have a strong case, you may want to to to trial and claim what you deserve. In case, you have only a moderate case, you might want to consider filing the lawsuit now and then wait for Merck to make up its mind about settlement. At that point you can walk away with what the company offers if that seems reasonable compensation for your pain and suffering. If not, you can still sue the company though that means that you may get nothing.

Related article: Vioxx lawsuits explode in number

As news came out that approximately 5,000 lawsuits have been filed against Merck, and cases were exploding overseas too, particularly in the UK, the company realized its mistake in pusuing such an aggressive legal strategy. In a surprising announcement yesterday in an interview with the New York Times, the company is now ready to settle the lawsuits with at least the worst affected Vioxx victims (the ones most likely to win the lawsuit).

But where does it leave all those Vioxx users overseas? They might actually turn out to be the losers in this scenario, at least if history can provide any indication. The Dow Corning example shows that European victims received lower compensation amount than American women because the company simply did not have enough resources to pay them after a hefty settlement in the US.

What that means is that Vioxx users will need to be more aggressive in making their case to the company and to the US courts if they want to be treated like American victims. It is expected that there will be more than 100,000 plaintiffs in the US alone. While Merck has deep pockets it will resist giving every extra dollar to a plaintiff.

Recommended article: Merck knew risks of Vioxx prior to launch

MSNBC is reporting that based on what Merck lawyers have told U.S. District Court Judge Eldon Fallon the number of Vioxx lawsuits is rapidly growing. It actually saw its highest growth since mid-July. Apparently, the media coverage related to Carol Ernst's case going to trial motivated other Vioxx victims to come forward.

The number is now approaching 5,000 and with the current rate of growth, it is expected to even double or triple during coming months. Judge Fallon will start the federal trial on November 28 this year and then subsequent trials are scheduled for February 13, March 13, and April 10 in 2006.

Since losing the Ernst vs. Merck case last week, the company is trying to get ready for the upcoming trial but most analysts expect that if the same evidence that Mark Lanier has presented is used by Chris Seeger, the attorney for the plaintiff Frederick M Humeston, Merck will lose the case once again. The company is so concerned that it may lose the case that it is asking Judge Carol Higbee to delay the trial by 45 days. A decision is awaited.

Recommended article: Number of Vioxx lawsuits also explode in Britain

There are numerous news reports about how Vioxx victims overseas are getting energized after the recent verdict in the US. It is not easy suing an American company if you do not live in the US. Vioxx, for instance, was sold in over 80 countries, according to Merck and was marketed under the brand name Ceoxx in some countries. However, we are only hearing of Vioxx lawsuits from about half a dozen countries - most notably, New Zealand, Canada, UK, France, Italy, Brazil and Israel. That does not mean that people did not die there. And now more and more Vioxx victims are coming forward.

Merck was quite aggressive in marketing the drug but almost all countries except US and New Zealand ban direct-to-consumer advertising. It is mostly the Americans who are naive enough to actually talk to their doctor about a drug when a drug company says, "Talk to your doctor about XYZ." That is exactly what Carol Ernst did to her husband who died within months of taking the drug.

Vioxx entered the UK market in June 1999 and was the most popular Cox-2 inhibitor in Europe. In the UK, after 13 months of launch, expenditure on coxibs accounted for 14 per cent of spend on traditional non-steroidal anti-inflammatory drugs (NSAID). Uptake of the COX-2 was been much slower in the UK market compared with the U.S. market.

Until its withdrawal, Vioxx was used by approximately 400,000 people in the UK and it is estimated that about 2000 Britons are dead. Irwin Mitchell, Leigh Day & Co, one of the top 10 law firms in England and Wales, and Goodmans Solicitors are pursuing Vioxx claims on behalf of people who have suffered heart attacks, or who have seen their relatives die from heart attacks after taking Vioxx. The three firms involved are currently representing over 200 claimants and following the Texas judgement, it is expected that other Vioxx claims will soon come forward.

Related article: Charities in the UK received donations from Merck

If you do a search on the Internet for buy Vioxx or Bextra (both drugs are now banned worldwide), you will find that many companies are advertising these drugs on their websites. In other words you can buy these drugs even though they are banned. Why would that be so?

While Vioxx and Bextra are now banned and may have killed over 60,000 people in America alone, both drugs were highly effective in pain relief. In fact some patients report that the kind of pain relief that they get from these drugs is not provided by other painkillers though Celebrex (which is still available though with a black box warning) does perform very well too.

After Merck recalled Vioxx in September last year while the FDA forced Pfizer to recall Bextra in April this year, both companies offered a refund for unused drugs. However, it seems that not everyone (particularly the pharmacies) decided not to seek a refund hoping that they will be able to sell them later to those who are "addicted" to these drugs.

A newspaper report says that both Rofecoxib (Vioxx) and Valdecoxib (Bextra) are openly available in New Delhi - capital of India. This is not surprising since India has a very poor drug supply system with literally no monitoring of the prescription drug market. Pharmacies often sell fake drugs or sell prescription drugs without a proper prescription.

When consumers need information on the Internet it is generally true that the most appropriate website is the one that has the same domain name. For instance, if you want to buy wine, the place to go is wine.com. Similarly, if you want beauty products, you go to beauty.com.

This makes life easy for everyone, but it can also be abused - as is the case of drug companies. For instance, arthrtis.com is actually operated by Pfizer - the drug company that makes the now-banned Bextra (after reports of severe side effects). The company also sells Celebrex, though with a black box warning. However, a casual visitor to the website will not be able to figure that out. Similarly, cancer.com is operated by Ortho Biotech - another company that makes drugs.

Many patients wrongly assume that such websites are somehow independent or impartial but they are not. That is what people also assume when they think of all these non-for-profit organizations that supposedly help everyone. A big scandal is developing in the UK where it has been found that many leading charities that were helping arthritis patients were also receiving funds from Merck (the maker of now banned Vioxx) and other painkiller manufacturers.

Arthritis Care, National Rheumatoid Arthritis Society, the National Osteoporosis Society and the British Society for Rheumatology are some of the charity organizations that have financial ties to drugmakers while an average person would not be able to find that out.

Almost always, drug companies also fund research at university, research labs, and even at some small companies. These institutions are so desperate for money that they will do anything to get the funds. Not all medical journals require the contributors to disclose financial ties to corporations. In other words, one can hardly trust anyone these days. So when you take a drug or seek advice from a doctor or an organization, you must be very careful.

Recommended article: Merck knew Vioxx risks prior to launch

The Houston Chronicle has conducted an interview with Carol Ernst, the widow who sued and won the first Vioxx lawsuit against Merck last week. She makes two very important points about why it was worth suing the company:

1. [I]t's not on the market anymore.
2. [T]he pharmaceutical companies know or should know that physicians and consumers have the right to know risks that are involved in taking drugs, especially when the information is there. (Related article: Merck knew Vioxx risks prior to launch)

Most Americans and people worldwide will agree. If a company sells a pair of jeans with defective zippers, what do we have to lose? Not much. Maybe the jeans wouldn't last that long or we might need to repair the jeans. With drugs, people get hurt - some even die. At least that is what happened to 140,000 or so Americans who were naive enough to believe Merck and sought pain relief in Vioxx. As many as 60,000 are no longer alive to question Merck while others suffer with their cardiovascular systems affected in some way. (Related article: 2000 deaths estimated in Britain from Vioxx)

That is what happened to Ms. Ernst too. She lost her husband within a year of her marriage. The company still does not accept that it caused the death of Robert Ernst and has vowed to appeal the verdict, despite strong warnings from analysts and attorneys that it may be a good time to settle all pending lawsuits out of court.

Recommended article: Dr. David Graham praises the Texas jury verdict

AP is reporting that newly released documents show that Merck tried to get patent protection for a way to reduce cardiovascular problems in Vioxx, as early as 1998 - a year before the popular painkiller for arthritis was introduced. This is further evidence of the fact that Merck knew very early on that Vioxx was a dangerous drug with serious side effects on the heart but in order to compete with Pfizer, it decided to launch the drug any way.

This documents further discredits Merck's argument that it came to know of the risks of Vioxx only in September 2004 when it "volunatarily" recalled the drug.

There have been earlier reports that Merck's internal memos show that the marketing and patent officials within the company were discussing how to reformulate the drug to reduce the cardiovascular risks. Instead, the company came up with a well-designed program to deceive doctors, patients, and drug regulatory agencies so that anyone who tried to criticize the drug was attacked and the drug was aggressively marketed to doctors and patients.

With the recent verdict in Texas, everyone is questioning Merck's legal strategy and talks of Merck's ability to survive the crisis is everywhere. Deutsche Bank analyst Barbara Ryan is quoted by Reuters as saying that the Vioxx litigation could last a decade or longer, hurting company morale and thereby Merck's ability to recruit talented scientists. One analyst goes so far to say that if Ms. Carol Ernst's case is an example of what is to come, "Merck will essentially be in business to give these people money."

Derrick Chizer, one of the jurors in the Ernst vs. Merck trial related to Vioxx, is quoted as saying that the jury wanted to send Merck and the drug industry a message: "Stop doing the minimum to put your drug on the market." No wonder they came up with the highest number that they could - $253 million in damages to Carol Ernst (though the actual amount she will get will be only $26 million under Texas law).

David Webb, another juror, said he went into deliberations supporting Carol Ernst, "but I wanted to give the defendants a chance. We just really didn't find anything that helped them."

"They needed to be held accountable for putting a drug out there that shouldn't be out there," said Stacy Smith, a 21-year-old child care provider who stood with the majority in the 10-2 vote in favor of Ms. Ernst.

"I want them to listen," said Marsha Robbins, a 53-year-old homemaker who was the presiding juror and the oldest of the panel.

It seems that these are very intelligent remarks from jurors. It is important to know that many jurors were ridiculed earlier by business-friendly publications who speculated that jurors who are poorly educated and live in a rural may not be able to appreciate the complexity of drug research and medical issues involved in making a decision.

The statements made by the jurors and the manner in which the deliberations were conducted clearly proved these people wrong. It is now obvious that these jurors have set a very high standard for other jurors in upcoming trials in New Jersey and New Orleans.

Did you ever hear the mantra, "Customer is always right?" Well, it is the case for all businesses except Merck, the maker of now withdrawn drug Vioxx. Instead of treating its customers with respect and dignity, it has ferociously attacked them. No wonder the jury in Texas was so enraged that they awarded over a quarter billion bucks to Ms. Carol Ernst. Apparently during the trial, not only was Ms. Ernst treated harshly by Merck attorneys, she was also asked totally irrelevant questions.

You would expect that Merck would learn from its mistakes and change its strategy. Not so fast. Bloomberg is reporting that while questioning the doctor for another plaintiff U.S. Marine Frederick Humeston, Merck's lawyer "suggested that his patient's heart attack was caused in part by stress from the Postal Service's secret videotaping to see if he had faked a knee injury." Just remember that this man has been in combat and a recipient of a Purple Heart. His lawsuit is scheduled to go on trial next month and most analysts expect Merck to lose this case as well since compared to the lawsuit by Carol Ernst this one strongly favors Humeston.

While Carol Ernst was awarded over $250 million by the Texas jury that found Merck guilty of causing the death of Robert Ernst, she may get only $26 million or so since the company plans to appeal the verdict. Under Texas law, she is entitled to a much smaller amount and that is what will happen when Merck files an appeal.

This does not change the fact, however, that Merck has been found to be guilty and that is already encouraging thousands of other Vioxx victims to come forward worldwide. It is also important to note that Merck was heavily favored to win this particular case but lost it anyway for several reasons. One, Merck's internal documents provided strong evidence that Merck knew that Vioxx was a dangerous drug even before the drug was officially launched. Two, Merck had a really bad group of lawyers who did not even prepare its own witnesses. Finally, Merck attacked Carol Ernst during crosss-examination as if she was not a soft-spoken, grieving widow, but some kind of a criminal. No surprise then that Merck lost the case, and since it is not changing its lawyers, it is highly likely that it will continue to lose other cases as well.

Analysts are already predicting that if Merck loses a few more cases during coming months, the company will start to talk about out-of-court settlement - something that the company has refused to discuss out of sheer arrogance at this point.

Recommended article: Vioxx victims in Britain get ready to sue Merck

The verdict by a jury in Texas that blamed Merck for the death of Robert Ernst and awarded over a quarter billion dollars to his widow Carol Ernst is now making lawyers worldwide better understand how the litigation will play out. The fact that there are thousands of internal Merck documents that implicate the company means that all they have to show is that the heart attack was caused by Vioxx.

While the lawsuits have exploded in the United States, the process is just starting overseas, though this verdict is definitely going to give them a boost. Plaintiffs and solicitors in the UK, for example, are working on plans to sue Merck while Australian lawyers are collaborating with British lawyers to file lawsuits against Merck in American courts. But the lawyers are being cautious. For instance, Slate and Gordon law firm in Australia is only accepting instructions from people who took 25mg of Vioxx per day, and who suffered heart attacks following at least 18 months Vioxx usage. "We are not able to investigate claims on behalf of people who suffered strokes," the firm says. That is not the case in the United States where attorneys are able to claim a personal injury if the health of a patient was compromised after taking Vioxx.

In a recent report it has been found that as many as 2,000 Britons are dead due to Vioxx, but since Britain does not have a "no-win-no-fee system" (which the United States does), they will simply cross the pond to fight it out in the Garden State, where Merck's headquarters are based.

Recommended article: Merck has blood on its hands

In the Vioxx recall saga, the focus has been on the United States. The FDA estimated that as many as 140,000 Americans were injured by the drug. While no headcount is available, Dr. David Graham at the FDA estimates that between 50,000-60,000 Americans died from Vioxx.

No accurate estimates are available for other countries in the world but Britain may be the second country to have an estimate. The Sunday Times has done its own investigation and is reporting that the number of deaths in Britain is closer to 2,000. Officially a little over 100 Britons are estimated to have died due to Vioxx.

The US legal system is much more favorable to consumers since they do not have to pay the defendant in case they lose the case. Not so in Britain, and that is a problem, discouraging many Vioxx victims to press their lawsuits.

Mark Harvey, an attorney in south Wales, tells the BBC that he is trying to get the lawsuits tried in the US rather than Britain but the American courts are generally reluctant to take these cases despite the fact that any foreigner can sue an American corporation in the United States.

Dr. David Graham, an expert at the FDA, was among the first ones to criticize how the FDA works and was almost fired by his bosses for accusing them of favoring Merck in the Vioxx case. It was his research that showed that as many as 140,000 Americans have been hurt by the drug and almost 60,000 are actually dead.

Nobody at the FDA listens to him much though since the FDA has very close ties to the pharmaceutical industry which not only gives millions of dollars to the agency in fees but also keeps (mostly) the Republican politicians (except Senator Grassley) in Washington happy through campaign dollars.

Graham, while speaking to Forbes says, ""If the judgment is that there's blood on Merck's hands, there's blood on the FDA's hands as well." He was responding to the news that Carol Ernst, the widow of Robert Ernst is to receive over a quarter billion dollar from Merck for being responsible for causing his death.

"Today Merck was on trial, and a judgment was rendered," he tells the magazine. "But when will the public hold the FDA accountable for its role, its complicity, in this catastrophe?"

Carol Ernst, who became a widow in less than a year after getting married to Robert Ernst, has been awarded over $250 million in the first-ever Vioxx lawsuit that went to trial in the United States. Merck, the maker of now-recalled Vioxx, has vowed to appeal.

A brief background on Vioxx saga

Vioxx, Celebrex, and Bextra are drugs that belong to the so-called Cox-2 inhibitor drugs category and provide pain relief for arthritis patients. It was long known that these drugs increased the risk of heart attacks but drug companies like Merck and Pfizer continued to sell them aggressively while the FDA turned its face the other way. In any case, FDA was receiving millions in dollars in fees from drug companies it was supposed to manage.

After it was known that as many as 50-60,000 Americans were dead due to Vioxx, Celebrex, and Bextra, Merck recalled Vioxx in September of last year while the FDA forced Pfizer to recall Bextra in April this year. Celebrex, which was also expected to be recalled has received a black box warning.

Merck and Pfizer face tens of thousands of plaintiffs in trials that are expected to last at least for the rest of this decade and leading to liabilities that are expected to add up to tens of billions of dollars.

Ernst's attorney put together a compelling case and the evidence was overwhelming. In fact Merck had so many internal documents that implicated it that the plaintiff's attorney really did not have to work hard.

What does it mean?

A lot of Vioxx victims have been sitting on the sidelines and were waiting for the decision in this case. Plus many Vioxx attorneys were not handling any cases that were not rock solid. This is now likely to change as more cases are brought to trial.

Merck has vowed to fight each case individually and is likely to drag the litigation process to discourage more plaintiffs from coming forward.

Reuters is reporting that the jury in Angleton, Texas has reached a decision and the court will reconvene shortly to announce the decision of the jurors.

In an earlier report, it was expected that the jury is likely to favor Carol Ernst. Her attorney Mark Lanier has asked for over $40 million for her from Merck.

Welcome to Vioxx Litigation News

Welcome to a totally independent source of information on Vioxx litigation. As the litigation proceeds during coming months and years, we will provide you with totally unbiased information and news. From time to time we will use input from both sides including Vioxx attorneys and the defendant Merck, but what you will hear is useful information for your benefit.