Vioxx set to take center stage in Madison County

Steve Gonzalez Feb. 8, 2007, 5:39pm

Madison County Circuit Judge Daniel J. Stack

Attorney John Driscoll

Attorney Dan Ball

Plaintiff's attorney John Driscoll of Brown & Crouppen will try to convince a jury that Vioxx caused or significantly contributed to the death of Frank Schwaller's wife in Madison County's first trial against Merck over the recalled arthritis pain reliever.

The high stakes trial, likely to capture national attention, will last at least six weeks. The court's most experienced handler of complex litigation Circuit Judge Daniel Stack will preside over the dramatic stage, set to open Feb. 20.

Jurors will report to the courthouse that day and will have a week to fill out jury questioners. They will return Feb. 26, when voir dire -- juror interviews -- begins.

Vioxx was pulled from the market in September 2004 because studies indicated it could contribute to heart ailments. Since then it has been targeted in thousands of lawsuits across the country.

While the pharmaceutical is under siege in court, a recent study by the Competitive Enterprise Institute offered moral support for Merck by reporting that an overwhelming majority of orthopedic surgeons surveyed believe Vioxx should still be on the market. (See related story).

Vioxx is the brand name of rofecoxib, one of a class of drugs called prostaglandins which work to reduce inflammation and pain by providing analgesic and anti-inflammatory benefits to people who suffer from arthritis and muscle pain.

Vioxx was introduced in the United States in 1999. Vioxx is a Cyclo-Oxygenase-2 (cox2) inhibitor and was used to treat arthritis and is in the class of drugs called NSAIDs (non-steroidal anti-inflammatory). Other NSAID drugs include Ibuprofen, Celebrex and Aleve.

In the upcoming Madison County trial, Schwaller claims Merck failed to effectively warn users and doctors that numerous other methods of pain relievers, including Ibuprofen, Naproxen and Mobic were safer.

He claims Vioxx was defectively designed, inadequately tested, dangerous to human health, and lacked proper warnings, which subjected users to risks of heart attacks, strokes and other illnesses.

Schwaller is seeking at least $250,000 for Merck's alleged violations of Illinois Consumer Fraud Act, product liability, negligent design and negligent failure to warn.

He claims his wife was unaware of the "dangerous propensities" of the product until well after her use and medical conditions requiring hospitalization.

Schwaller also claims that Merck did not accurately reflect the symptoms, type, scope, or severity of the side effects and also claims Merck failed to perform adequate testing prior to marketing Vioxx.

"Merck also failed to act properly on adverse reports it received about Vioxx, and failed to properly study pre-market as well as post-market studies," Schwaller's complaint notes.

Trial outcomes have so far produced mixed results.

On Aug. 19, 2005, a jury awarded Texas widow $253.4 million in damages in the first Vioxx trial.

In November 2005, Merck won the second case that went to trial in New Jersey. The jury ruled that Merck had adequately warned doctors and patients of the drug's risk.

In January 2006, a Texas jury awarded a 71-year-old smoker with heart disease $7 million compensatory and $25 million punitive damages. The plaintiff in that case had a fatal heart attack three weeks after finishing a one-week sample of Vioxx.

In a federal trial in February 2006, a jury found Merck not liable after the case was first tried in a Houston court, but resulted in a hung jury.

Merck has reserved $970 million to pay for its Vioxx-related legal expenses through the end of this year.

They will be represented by Dan Ball, Dan Nester and Stephen Strauss of Bryan Cave in St. Louis.

George Tsougarakis of Hughes, Hubbard & Reed in New York will also represent Merck.

Driscoll will have help from Andy D. Birchfield, Jr., and Patricia Leigh O'Dell of Beasley, Allen, Crow, Methvin, Portis & Miles in Montgomery, Ala.

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