Circuit Judge George Moran
After taking a month to review the merits of Merck’s motion to transfer venue in a Vioxx class action suit filed by a Granite City woman, Madison County Circuit Judge George Moran, Jr. transferred the case to Cook County.
Myrna Amisch filed suit just one week after Merck removed its arthritis pain medication from the market for safety reasons on Sept. 30.
Dan Ball, of Bryan Cave in St. Louis, who represents Merck on many Vioxx suits in Madison County including the one filed by Amisch, argued that there is no relief that she can obtain here that she cannot also obtain in other class action lawsuits filed over Vioxx.
“Merck should be protected from facing identical allegations in multiple jurisdictions, as it would be manifestly unfair for Merck to answer the same allegations in multiple courts and repeat the discovery process multiple times,” Ball wrote in his motion to dismiss.
Lawyers for the family of decedent Robert Ernst--whose first-ever Vioxx trial is currently under way in Texas--are focusing on a letter Merck sent to doctors in 2001 stating that only .5 percent of patients taking the drug in the largest clinical trial had incurred cardiovascular events or heart and circulation problems. The suit alleges Ernst died because of his Vioxx use.
But Merck strongly denies that Vioxx was responsible for the plaintiff’s death, which according to an autopsy report was the result of arrhythmia. Merck contends Vioxx has never been linked to arrhythmia.
Amisch's class action complaint, the third and latest against Vioxx filed in Madison County, alleges that Merck deceived consumers into believing Vioxx was a superior product over others and that it hid the drug's dangerous side effects.
"The plaintiff would not have purchased Vioxx had they known of the increased risks of hypertension, stroke and/or myocardial infarcts," Amisch's complaint states.
The suit seeks to recover no more than $75,000 minus costs and interest.
Ball also claims that allowing Amisch’s suit to proceed would encourage others to file lawsuits to circumvent adverse rulings or force settlements.
He states that Merck will suffer substantial prejudice if it is forced to simultaneously litigate identical claims in multiple courts by facing the risk of inconsistent rulings and judgments.
Elizabeth Heller of the Edwardsville firm Goldenberg, Miller, Heller & Antognoli represents Amisch.
Amisch’s consumer fraud class action suit further alleges that Merck concealed and misrepresented the risks of taking Vioxx and that it was not superior to other safer and less expensive pain relievers.
She also claims that because of Merck’s failure to disclose the health risks of Vioxx, she was unable to discover the acts until Merck withdrew the products from the market in September.
The drug was approved by the FDA in 1999, and was marketed as a safe alternative pain medication for people who suffer from arthritis, but Merck voluntarily pulled Vioxx from the market last September after a study confirmed that it increased the risk of heart attack and stroke if taken for more than 18 months.
Heller has appealed Moran’s decision, so technically the case will not be transferred until the appellate court rules on her motion. If the appellate court agrees with Heller, the case will stay in Madison County.
On July 21, Merck announced the company continued to reel from its withdrawal of Vioxx. The drug generated $2.5 billion in sales for Merck in 2003.
Merck also has set aside $675 million in reserves for litigation fees over Vioxx. Graeme Bell, Merck's senior director of investor relations said the company has seen at least 4,100 lawsuits, and expects that number to climb.
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