A lawsuit filed by the widow of a Florida businessman has been chosen as the first Vioxx case to go to trial among nearly 2,000 cases pending in the federal Vioxx multi-district litigation (MDL). 

Judge Eldon E. Fallon of the U.S. District Court for the Eastern District of Louisiana, who is presiding over the litigation, announced that Plunkett v. Merck & Co. will go to trial on Nov. 28.

The Montgomery, Ala. law firm of Beasley Allen represents the plaintiff, Evelyn Irvin Plunkett, whose husband, Richard Irvin Jr., began taking Vioxx for back pain on April 15, 2001. He died a month later of a heart attack at age 53.

Irvin was the manager of a wholesale seafood business in St. Augustine, Fla., and was in good health, according to his wife. She claims he died because he took Vioxx, which Merck pulled from the market last year after a study showed that it doubled the risk of heart attack or stroke if taken for 18 months or more.

Andy Birchfield, a partner at Beasley Allen and co-lead counsel for the plaintiffs’ steering committee for the multi-district litigation, said the judge set the trial date and then invited both parties to provide input before determining which case would go first.

“We certainly feel this is a good, strong case to lead off with,” he said. But we’re also “just excited about the prospect of getting these trials moving. We’re certainly excited to see Judge Fallon is moving cases to trial this quickly in the MDL.”

He added, “Merck has taken the position they’re going to trial in these cases, so we’re prepared to do that.”

Birchfield said his firm has filed about 160 Vioxx suits and is evaluating 10,000 more claims involving former Vioxx users who suffered heart attacks or strokes.

The first Vioxx trial is currently under way in state court in Angleton, Texas. The suit was filed by Carol Ernst, whose husband, Robert, a 59-year-old personal trainer, died four years ago of an arrhythmia, or irregular heartbeat. He had been taking Vioxx for about eight months to ease pain in his hands.

Birchfield said he has been following the Texas trial, but that he does not consider its outcome critical to the overall Vioxx litigation.

“It’s going to take a number of trials to see how liability and responsibility is going to shake out, and to see if Merck will change its position and begin providing compensation to the victims here,” he said.

In a separate Vioxx ruling, a New Jersey judge ruled last month that health plans that paid for members’ Vioxx prescriptions can sue as a class to recover billions of dollars spent on the recalled painkiller.

In her ruling, New Jersey Superior Court Judge Carol E. Higbee wrote: ”[T]here are significant factual and legal issues common to all class members to make adjudication through class action fair and efficient. Having each individual class member attempt to litigate their claims [separately] would result in needless duplicative discovery, undue expense to the parties as well as an undue burden on the judicial economy.”

In a statement, Merck’s outside counsel Ted Mayer disagreed with the decision.

“We believe these types of claims cannot be litigated on a class-wide basis. In deciding whether to reimburse, each third-party payer had different business objectives and, in meeting those objectives, considered and relied on different information, at different times, regarding different patients with different medical histories.”



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