Merck reaffirms its Vioxx lawsuits strategy

As Merck's stock price continues to slide and advice from all quarters is that the company should give up its strategy of fighting thousands of lawsuits, the company is fighting back. Almost immediately after the verdict that Merck caused the death of Robert Ernst and should pay approximately $26 million to Carol Ernst (the award will be reduced from the original $253 million under Texas laws), the company announced its decision to appeal.

The appeal had no effect on Wall Street as investors fleed the stock and analysts raised their liability estimates by tens of billions of dollars. In another desperate attempt to fight back, Kenneth Frazier, the general cousel at Merck, reaffirmed his firms strategy to deal with each Vioxx victim on an individual basis. "This is the first of many trials. Each case has a different set of facts. Regardless of the outcome in this single case, the fact remains that plaintiffs have a significant legal burden in proving causation," he said in a statement hoping to discourage further litigation. News reports from around the world, particularly Britain, Australia, New Zealand, Canada and France indicate that the lawyers in these countries are either getting ready to file their lawsuits or working with their peers in the US to help them. Some are already calling for out-of-court settlements.

Merck is not discouraged, however, either by the verdict in Texas or the explosion in lawsuits since the verdict was announced last week. "The case presented to the jury by the plaintiff was fundamentally flawed. The jury was allowed to hear testimony that was not based on reliable science and that was irrelevant. We intend to appeal the verdict. Our appeal is not about legal technicalities but about basic rights to a fair trial."

Recommended article: Vioxx victims have a strong case against Merck

Merck vows to appeal quarter billion reward to Vioxx victim

After a disastrous start to Vioxx recall related litigation for Merck, the company is vowing to appeal the verdict. In a courtroom in Brazoria County, Texas, the jury found Merck guilty of causing the death of a very healthy Robert Ernst. After it became public knowledge that Merck had known the dangers of Vioxx even prior to its launch and it deliberately kept everyone in the dark about them, the jury awared a little over a quarter billion dollars to his widow Carol Ernst. (Related link: Vioxx recall news)

"We believe that the plaintiff did not meet the standard set by Texas law to prove Vioxx caused Mr. Ernst's death," said Jonathan Skidmore of Fulbright & Jaworski, a member of Merck's defense team. "There is no reliable scientific evidence that shows Vioxx causes cardiac arrhythmias, which an autopsy showed was the cause of Mr. Ernst's death, along with coronary atherosclerosis." This was the first product liability lawsuit to go on trial and it is definitely a great setback to Merck, which has denied any wrongdoing at all. It is estimated that up to 60,000 Americans may be dead after taking Vioxx. The jury saw a lot of internal Merck documents that clearly showed what Mark Lanier, the attorney for Ernst, was saying.

"This case did not call for punitive damages," added Skidmore. "Merck acted responsibly - from researching Vioxx prior to approval in clinical trials involving almost 10,000 patients - to monitoring the medicine while it was on the market - to voluntarily withdrawing the medicine when it did."

Merck is examining various bases for appeal, including:

1. Allowing opinion testimony to be given to the jury by unqualified experts and that it was not based on a reliable scientific basis as required by Texas law,
2. Allowing evidence with no relevance to the issues of the case, which unfairly prejudiced the jury, and
3. Allowing undisclosed surprise witness and expert testimony contrary to Texas law.

Merck is referring to the highly damaging testimony by Maria Araneta, the coroner. She was a surprise witness since Mark Lanier initially did not disclose her name. In its desperate attempt to block the jury from hearing Araneta's testimony that Bob Ernst must have died from a heart attack, Merck even appealed to an appelate court but lost.

We believe that we have strong points to raise on appeal and are hopeful that the appeals process will correct the verdict," said Kenneth C. Frazier, senior vice president and general counsel of Merck. "Our appeal is about fundamental rights to a fair trial."

"There are other Vioxx cases coming to trial and we will vigorously defend them one by one over the coming years," Frazier added. He was clearly referring to over 100,000 or so plaintiffs that Merck will face in the United States alone in over 4,000 cases. While many analysts believe that Merck will eventually go bankrupt, its liabilities are clearly estimated to add up to tens of billions of dollars.

Related articles: Vioxx victims in Oregon unable to sue Merck - Pain relief options - Celebrex black box warning - Controversial start to Vioxx recall - Vioxx litigation expected to be easy

Vioxx class action lawsuit filed in Canada

So far not a lot of attention has been paid to Vioxx victims outside the United States, but that does not mean that there are none out there. Some Europeans have already sued Merck while others are getting ready to do so. In most cases attorneys find it easier to work with a US law firm and that is exactly what Morin & Miller of Ontario, Canada is doing. It is teaming up with a US law firm Motley Rice LLC to file class action lawsuit against Merck Frosst Canada &
Co., Merck Frosst Canada Ltd., and Merck & Co. Inc. (Related article: Celebrex class action lawsuit in Canada)

The plaintiff is The Electrical Industry of Ottawa Health and Benefit Trust Fund and members of the class of entities. In a major setback to Merck, International Union of Operating Engineers Local No. 68 Welfare Fund in the United States was also allowed to file a class action lawsuit.
The Electrical Industry of Ottawa Health and Benefit Trust Fund, a third-party payer located in the city of Ottawa, is responsible for administering and paying the healthcare benefits of its members, unionized electricians or the staff of electrical contractors.

"We believe people of Canada have been misled and deceived by all three of these Merck corporations. We also believe if they had been forthright, the drug would not have remained on formularies and would not have been prescribed at the same rate or at all," stated Paul Miller, attorney with Will Barristers: Morin & Miller of Toronto.

Celebrex black box warning added

As reported earlier, at the direction of the FDA, Pfizer has agreed to add a black box warning to the label of Celebrex. Two other drugs in the Cox-2 category - Vioxx and Bextra - have since been banned worldwide.

According to the company, the final label contains a boxed warning of potential cardiovascular and gastrointestinal risks for Celebrex that will be consistent with warnings for other prescription pain relievers, including older, commonly used medicines like ibuprofen and naproxen. This addition follows a February 2005 meeting of an FDA advisory panel, which conducted a rigorous scientific review of selective and non-selective pain relievers. The panel recommended that stronger warnings be added to all selective COX-2 pain medicines as well as to the older, non-steroidal anti-inflammatory drugs (NSAIDs) such as ibuprofen and naproxen. In addition, the panel recommended avoiding usage of all NSAIDs and Cox-2 selective medicines to treat the acute pain associated with heart by-pass surgery.

According to the broad guidelines provided by the FDA, Pfizer is saying that Celebrex (celecoxib) be prescribed at the lowest effective dose for the shortest duration consistent with individual patient treatment goals. The recommended dose for Celebrex is 200 mg daily for osteoarthritis and 200 mg to 400 mg daily for adult rheumatoid arthritis.

Sales of Celebrex have dropped rapidly after reports that Vioxx have killed tens of thousands of Americans and injured over 140,000 people. Both Merck and Pfizer are being targeted with thousands of lawsuits for hiding the risks of Cox-2 inhibitor drugs.

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