A New Jersey appellate court panel on Tuesday opened the door to a potential class action lawsuit against Merck & Co. on behalf of people who took its now-withdrawn painkiller Vioxx and want the company to pay for tests to detect possible heart ailments.
The ruling by the Appellate Division of the Superior Court of New Jersey came as jury selection began in Atlantic City for the next product liability trial over Merck’s one-time blockbuster arthritis pill.
That trial, before Superior Court Judge Carol Higbee, is slated to begin with opening arguments Monday. It includes two plaintiffs: the estate of a man who died of a heart attack after taking Vioxx and a retrial for a man who survived a heart attack, lost his first trial against Merck and was granted a retrial because of new evidence.
The ruling by a three-judge panel overturned a decision by Higbee last May in a case that sought to include patients who have not suffered medical problems but took Vioxx for at least six consecutive weeks before Whitehouse Station-based Merck pulled the drug from the market. That move in 2004 came after Merck’s own research showed Vioxx doubled the risk of heart attacks and strokes.
Tuesday’s decision said the lower court dismissing the case “prematurely terminated plaintiffs’ opportunity” to prove they have a legal claim.
“Historically, medical monitoring cases have primarily been in environmental and other chemical exposure cases” in New Jersey, said Esther Berezofsky, lead attorney for the plaintiffs.
She said the appellate ruling allows plaintiffs to bring suit again to seek medical monitoring in cases involving medications. Berezofsky said the case would now go back to Higbee for the judge to decide whether to grant class-action status to an undetermined number of former Vioxx users around the country.
“It would be obviously in the tens, potentially hundreds of thousands” of people, Berezofsky said, adding that any who had suffered “silent heart attacks” might need medication or other treatment to prevent another heart attack.
Ted Mayer, a Merck lawyer, said in a statement that the appellate ruling only “instructs a lower court to reconsider the validity of plaintiffs’ claims after more fact gathering is completed.”
“There is no medical science supporting the plaintiffs’ position that they need to be monitored for cardiovascular conditions two years after Vioxx was voluntarily taken off the market,” Mayer stated.
He said Merck is considering asking the New Jersey Supreme Court to review the appellate ruling.
Merck faces more than 27,000 personal injury lawsuits over Vioxx - more than half of them in Higbee’s court - plus about 265 potential class-action suits. At least 14,000 additional plaintiffs have entered agreements with Merck suspending the time limit for lawsuits.
Merck has won the last four Vioxx trials, three in federal court in New Orleans and one in state court in Alabama. Of the 13 cases that reached verdicts, Merck has won eight, lost four and faces a retrial in one.
Merck had won that case, against Frederick “Mike” Humeston, one of the two plaintiffs in the latest Atlantic City trial. Last August, Higbee overturned that verdict, ruling the jury might have been swayed by information, disclosed after the trial, indicating relatively short-term use of Vioxx increased heart risks despite Merck’s claims the risk only increased after 18 months’ use.
Attorneys for Merck say pre-existing heart problems and various risk factors caused the heart attacks suffered by Humeston, now 61, and by Brian Hermans, who died of a heart attack at 44.
Hermans’ attorney, Mark Lanier, said the man had some signs of hardening of the arteries but was “a world-class racquetball player” whose autopsy showed a heart artery blocked by a large blood clot. Lanier argues Vioxx fostered formation of the clot and thus Hermans’ fatal heart attack.
In afternoon trading on the New York Stock Exchange, Merck shares were up 13 cents at $44.92.