Patients worldwide set to sue Merck

Patients worldwide who suffered heart attacks or strokes while taking the arthritis painkiller Vioxx are preparing to sue its manufacturer, Merck, exponentially increasing the company's potential liability.

Last week, a jury in Texas found Merck liable in the death of Robert Ernst, and voted to award US$253.5 million to his widow, Carol. Jurors said they concluded that Merck was long aware of Vioxx's potential heart risks but concealed the risks from patients.

While there are about 4,000 lawsuits pending in the US, there are potentially many more around the world, especially in Europe, where Vioxx, used to relieve the pain of arthritis, was extremely popular.

In the Texas case, state rules on punitive damages would limit Ernst's total award to US$26.1 million, and that could be reduced further on appeal. Still, if other cases go against Merck, the litigation could collectively become the biggest medical product liability action in history, exceeding in scope and economic effect the thousands of lawsuits associated with silicone breast implants in the 1990s, which drove their US manufacturer, Dow Corning, to file for bankruptcy protection.

Lawyers are collecting data on thousands of cases, trying to assess whether they should sue Merck in the US, where rewards are expected to be higher, or in their home countries, where there are likely to be fewer legal hurdles.

Christine Peckham, 52, an Englishwoman who had two strokes in 2001 while taking Vioxx, has already filed court papers in New Jersey.

"Merck has to be made accountable since they knew about this problem at least seven months before I had my first stroke," Peckham, who is now legally blind and uses a wheelchair, maintained. "I can't work again, and there's no reason why British taxpayers should cover my costs."

It is difficult to tally the exact number of suits being filed outside the US, although lawyers in Italy, France, the UK and Australia are working on cases. In each country, the number of people who took Vioxx was in the hundreds of thousands.

Richard Meeran, special counsel with the law firm of Slater & Gordon in Australia, said the firm had at least 100 strong cases against Merck, all involving people who, he said, had suffered or died of a heart attack after taking Vioxx for more than 18 months.

But he expressed concern that huge verdicts in the US might mean that clients abroad would not have time to effectively pursue their claims.

"Our main concern," he said, "is that Merck will run out of money, given the number of claimants and the size of the US award. We're not overly concerned about the merits of the cases since we think it is clear that the company behaved unacceptably."

Lawyers in other countries said that they had similar concerns. After Dow Corning filed for bankruptcy protection in 1995, European women who contended that their silicone implants had ruptured and caused autoimmune diseases and other ailments received less money than Americans under a compensation plan established by a US court.

"From past experience, there is a chance that foreign claimants might be treated less favorably," said Sapna Malik, a partner at Leigh, Day & Co, a law firm in London that is preparing to file suits on behalf of hundreds of British Vioxx users. Malik, who represented clients in class-action suits against Dow Corning, has not decided whether to pursue the claims in Britain or the US.

While industry analysts have estimated that the lawsuits may cost Merck billions of dollars, the company declined to discuss liability.

Vioxx, a chemical in the cox-2 family of medicines, was widely used to treat pain from arthritis and related diseases from 1999 until Merck voluntarily withdrew the drug last September, after a study showed a link between long-term use of the drug at high dosage and heart attack or stroke.

But earlier studies, including at least one in March 2000, had suggested a risk. Plaintiffs' lawyers contend that the company minimized and misrepresented earlier scientific data to aid sales.

About 20 million people took Vioxx, which was the subject of an aggressive promotional campaign by Merck. In the US, Merck spent US$500 million from 2000 until last year advertising directly to patients. Such advertising is prohibited in Europe.