An appeals court renewed the possibility that Merck may face a class-action Vioxx lawsuit, as lawyers got set to make opening arguments in the next product liability trial in New Jersey.
The Appellate Division of the New Jersey Supreme Court opened the door for the potential class-action suit when it overturned a lower court decision in a case that had sought to include patients who took Vioxx but haven't been diagnosed with any heart problems. The plaintiffs in the case want Merck to pay for tests to detect possible heart ailments, and a class-action suit could determine whether Merck should pay them for medical monitoring, which could mean an even steeper legal bill for Merck. Some Wall Street estimates for Vioxx liability go as high as $50 billion.
In a statement, Merck lawyer Ted Mayer said the company is considering asking the New Jersey Supreme Court to review the appellate ruling, the Associated Press reported.
“'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.
Meanwhile, opening arguments in a revised version of a multipart product liability trial are set to begin Monday in New Jersey. The plaintiffs include the sister of Brian Hermans, who died of a heart attack after taking Vioxx, and Frederick Humeston, the man who survived a heart attack, lost his first trial against Merck and was granted a new trial because of new evidence.
The number of plaintiffs had originally been four, but State Superior Court Judge Carol Higbee deferred the cases of Mary Carver, who took Vioxx for about 15 months before her heart attack, and George Kieley, who survived two heart attacks in 2002 at the age of 71.
“Is it a victory for Merck? You bet,” attorney Mark Lanier, who represents Hermans, told Bloomberg News. “They’re only trying two cases. Is it a frustration for us? Yes.”
Lanier, who won a $252 million Vioxx verdict against Merck in Texas, said the plaintiffs suggested scaling back to two cases after Merck lawyers objected to the original order in which they planned to bring the trials.
Merck faces 27,000 Vioxx lawsuits, and seeks to try each case individually rather than in a group.