Stack severing and sending off Vioxx claims that don't belong in Madison County

By Steve Gonzalez | Aug 2, 2007

Daniel Stack

Dan Ball

Madison County Circuit Judge Daniel Stack continues to make it clear that Vioxx plaintiffs must live in-county. For if out-of-towners want their cases to remain in his court they had better have compelling reasons.

Stack entered an order July 31 transferring two plaintiffs' claims against Merck to more convenient counties in Illinois.

Emil Smith, who claims Vioxx caused his heart attack and other health problems, had his case transferred to Kane County. Connie Testa, who claims Vioxx caused her stroke, had her claim moved to Will County.

"We believe that transfer was proper for the resolution of these claims," Merck's spokesman Tilden Katz said.

"Plaintiffs cannot simply select a particular county where they want to file a suit. We asked simply that the rules and the law be followed."

Jeffrey Lowe of St. Louis and Evan Schaefer of Godfrey represent Smith and Testa.

They filed suit on Jan. 3, 2006, along with 10 other Illinois residents, with only one of them being a Madison County resident.

In that case, Walgreens and Osco Drugs also were named as defendants.

Shortly after the case was filed, Merck attorney Dan Ball of Bryan Cave in St. Louis began filing motions to sever the claims.

Lowe argued that the plaintiffs in his case were properly joined because they all were Illinois residents and that one is a resident of Madison County.

He also argued that all of the plaintiffs allegedly suffered life shortening injuries because of their Vioxx use.

Lowe further argued that one trial, instead of 10, would be less expensive to each plaintiff and also that judicial economy would be served with one trial.

He tried to convince Stack that "the trend in pharmaceutical litigation is to try cases in groups."

Stack was not moved by Lowe's arguments and severed the cases by creating 10 individual product liability suits.

After Stack severed the cases, Ball then filed motions to transfer the cases based on the doctrine of forum non conveniens.

On Feb. 7, Stack sent two of the cases to DuPage County and one to Sangamon County.

Lowe then dismissed the claim of another plaintiff in the case.

Lowe has filed claims against Merck for at least 125 plaintiffs in Madison County and a majority of them have multiple plaintiffs from Illinois.

Merck has pending motions to transfer those cases as well, but in front of other judges.

Earlier this year, Stack presided over the first Madison County Vioxx trial that resulted in a defense verdict.

The plaintiff in the case, Frank Schwaller has asked Stack for a new trial. Stack set a hearing on that motion in September.

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