Circuit Judge George Moran

While it doesn't appear that a Vioxx trial will get under way any time soon in Madison County, a frequent Merck co-defendant, Walgreens, is asking Circuit Court Judge George Moran to be dismissed from a suit scheduled for trial in 2007.

Dick Donohoo of East Alton filed an 11-count suit Feb. 4, claiming his use of the arthritis pain reliever Vioxx caused him to suffer heart damage. Merck pulled the drug from the market almost a year ago and ever since, the pharmaceutical has been the target of thousands of lawsuits across the country.

In the nation's first Vioxx trial, a Texas jury recently awarded more than $250 million to a consumer's widow, but the whopping judgment was whittled down because of the state's cap on damages law.

According to Donohoo's suit, he claims he suffered a heart attack and stroke at age 67.

"His heart attack and stroke were caused or significantly contributed to be caused by Vioxx." He states the Vioxx was purchased from a Madison County Walgreen's.

Walgreens, according to Donohoo, was negligent because it sold a defective product and was in breach of warranty.

In its April 15 motion to dismiss, which will finally be heard Sept. 8, Walgreens claims Donohoo does not allege when Vioxx was sold to him, when he ingested the medication, or where he suffered his heart attack or strokes.

“Donohoo’s complaint fails to allege the date which he last received a prescription for Vioxx, however, based on the natural inferences of his allegations, Donohoo’s claim for breach of warranty is barred as he does not allege the Vioxx in question was purchased within two years of the alleged injuries,” the motion states.

Walgreens also claims that both state and federal courts in Illinois have held that pharmacists and pharmacies are not strictly liable under product liability theories of failure to warn or the “unreasonably dangerous” condition of prescription medication, if the medicine in question is dispensed as ordered by the prescribing physician.

“Donohoo does not allege that Walgreens filled the Vioxx prescriptions in question in any other way other than was ordered by the prescribing physician.”

Walgreens also claims that Donohoo fails to state a proper claim for breach of express warranty because he does not allege that the medication was not effective in treating the medical condition for which it was purchased.

Walgreens is represented by John Cunningham of Brown & James of Belleville.

Donohoo is represented by Jeffrey Lowe of St. Louis, Joseph Danis of St. Louis, Evan Buxner of Walther Glenn in St. Louis and Evan Schaeffer and Andrea Lamere of Godfrey.

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