Merck has certainly paid, and paid, and paid -- even tagging on an additional $321 million just last week -- for the pharmaceutical disaster that was the painkiller Vioxx. So one thing it didn't want to do was end up shelling out in a class action trial coming up in state court in Missouri for claims it already paid in multidistrict litigation in federal court.
Luckily for Merck -- and its counsel at Williams & Connolly and Skadden, Arps, Slate, Meagher & Flom -- U.S. District Judge Eldon Fallon of New Orleans, who oversaw the MDL, agreed. On Monday, Fallon enjoined the Missouri plaintiffs from introducing evidence from an expert damages report that failed to take into account claims already covered by a $4.85 billion settlement with personal injury plaintiffs in 2007 and an $80 million settlement with third-party payers in 2009. The Missouri trial is scheduled to begin in state court in Jackson County on May 21, 2012.
No one has put a number on how much money the injunction is worth to Merck if it loses in Missouri, but Fallon's ruling puts the plaintiffs' damages report in a precarious position with trial only a month off.
The Missouri case is a consumer class action in which plaintiffs, including name plaintiff Mary Plubell, seek damages for Merck's misrepresentations about Vioxx's safety. It's not a new endeavor. The class action was filed back in 2004, as one of the many individual and state actions based on Vioxx's link to an increased risk of heart attacks and strokes. (Merck's 10k filing on Feb. 28, 2012, notes that it's still facing 100 federal and state Vioxx suits, most of which are in the Louisiana MDL. In addition, six state governments have outstanding Vioxx claims against Merck.)
The Missouri plaintiffs have asserted that they're owed $220 million, the total amount everyone in Missouri spent on Vioxx. But in a brief filed before the federal MDL judge in New Orleans on March 22, Merck contended that the plaintiffs' damages figure includes claims by consumers, personal injury plaintiffs, third-party payers, and others who have already been part of federal settlements. Merck noted in its brief, for instance, that 2,393 Missouri personal injury claimants gave a full release of any and all claims as part of the 2007 settlement. Merck, which has also objected to the damages estimate in state court, asked Fallon to enjoin the Missouri plaintiffs from seeking relief for anyone who has already settled. The company made the request under the All Writs Act, which allows federal courts to "issue all writs necessary" to protect their judgments.
Fallon enjoined the Missouri plaintiffs from introducing evidence that encompasses "damages attributable to claims already settled" in his court. The Missouri plaintiffs' damages estimate, Fallon explained, includes the number of Vioxx prescriptions issued in Missouri without determining the subset of prescriptions for individuals who were part of the personal injury settlement or third parties covered by the payer settlement. If a jury relied on the plaintiffs' damages report, Fallon said, it might award damages Merck has already paid.
The plaintiffs, represented by Stueve Siegel Hanson and Gray, Ritter & Graham, had argued that they are pursuing only unreleased claims for violations of Missouri's consumer fraud law and that Merck is simply attempting to disrupt a long-scheduled trial. Don Downing of Gray, Ritter said the Missouri lawyers are evaluating Fallon's order and considering their appellate options. This trial is a long time coming for Downing and Patrick Stueve, who have been on the Missouri case since it was filed.
Merck was, of course, happy with the ruling. "Judge Fallon appropriately ruled that the plaintiffs in the Plubell case cannot seek to recover Vioxx payments made by personal injury claimants and third-party payors with whom the company previously settled," a Merck spokesman said. "The company is prepared to vigorously defend itself in the Plubell trial." Philip Beck at Bartlit Beck Herman Palenchar & Scott will be doing the defending -- he's scheduled to take the lead for Merck at trial.
(Reporting by Erin Geiger Smith)
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