Court reinstates litigation against Merck over Vioxx

A federal appeals court has overturned a lower court ruling and reinstated a plaintiff’s litigation against Merck & Co. Inc. in connection with its Vioxx drug, stating her claim was not time barred by a five-year statute of limitations, based on the incomplete information available at that time.

Kenilworth, New Jersey-based Merck manufactured and distributed Vioxx as a medication to relieve pain and inflammation between 1992 and 2004, according to Monday’s 2-1 ruling by the 8th U.S. Circuit Court of Appeals in St. Louis in Jo Levitt v. Merck & Co. Inc.

Ms. Levitt began taking Vioxx during the summer of 1999 and suffered cardiovascular injuries in March and May of 2000 while taking the medication, although her doctor continued to prescribe the drug until 2002, which was around the time Merck changed its label to disclose a risk of cardiovascular injuries associated with its use. Merck removed it from the market in 2004, according to the ruling.

Levitt filed a personal injury lawsuit against Merck on Sept. 29, 2006.  The U.S. District Court in Kansas City, Missouri, granted Merck’s motion to dismiss the case on the basis it was barred by Missouri’s five-year statute of limitations.

The question of whether Ms. Levitt’s case is barred by the statute of limitations is a question of fact for a jury to decide, said the majority opinion.

While beginning in early 2000 the media covered reports of a possible link between Vioxx and cardiovascular incidents, “the scientific community’s analysis remained tentative,” said the opinion.

“And Merck publicly argued at that time that no sound conclusions relating to cardiovascular risks could be drawn from the available studies.”

The “casual theory linking Vioxx to heart problems was only beginning to emerge in the scientific community before Sept. 29, 2001,” said the ruling, in reversing the lower court and remanded the case for further proceedings.

The dissenting opinion states that by the time Ms. Levitt suffered her cardiovascular injuries in 2000, “information in the public domain placed a reasonably prudent person on notice of a causal theory that linked Vioxx to cardiovascular injuries.”

Vioxx has led to nearly $5 billion in product liability lawsuit settlements and $830 million to settle a federal class action lawsuit by shareholders.