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Kentucky Files Vioxx Suit

Action is similar to those settled last year

By Jon Hood
ConsumerAffairs.com

September 30, 2009

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Kentucky Attorney General Jack Conway filed suit against Merck on Monday, alleging that the company's marketing of anti-inflammatory drug Vioxx violated state consumer laws. The suit is the latest in a string of court controversies directed at the long-defunct drug.

Conway alleges that long-running Vioxx ads made no mention of cardiovascular risks associated with the drug, despite listing other, more benign side effects. Conway cites an internal Merck study finding that Vioxx increases risk of heart attack and stroke as evidence that the company knew the drug was dangerous, but failed to disclose that information to consumers. That study showed that patients began to experience problems 18 months after taking the drug, and eventually linked Vioxx to 27,000 cardiac-related deaths between 1999 and 2003.

Merck has already hit back against Conway, with spokesman Ron Rogers wondering aloud why Kentucky didn't join in last year's settlement of a lawsuit making similar allegations. Merck paid out $58 million in that agreement, in which 29 states and the District of Columbia took part.

The settlement had wide-ranging implications for Merck in general, requiring the drug manufacturer to submit ads to the Food & Drug Administration (FDA) before releasing them. The FDA, in turn, has the power to make suggestions and even delay the release of a drug if it feels the marketing isn't sufficient in its disclosures.

It's unclear why Kentucky didn't take part in the earlier lawsuit. Conway became Attorney General in 2007, succeeding fellow Democrat Greg Stumbo. The legal principle of res judicata prevents a party who has already achieved an award or settlement from bringing a similar suit in the future. Under certain conditions, the rule can also bind persons or entities that were not parties to the first suit. Individuals are often barred from bringing suit if they could have joined a previous class action involving the same complaint. At first glance, Kentucky appears safe on this front, but we'll leave that for the courts to decide.

Vioxx has inspired endless litigation; at the outset, Merck faced 27,000 suits relating to the drug. A 2007 personal injury settlement dwarfed the false-advertising agreement, with Merck agreeing to pay over $4 billion to consumers who suffered injuries – namely heart attacks, strokes, and cardiac arrest – after taking the drug. At the time, Merck had taken 16 individual cases to trial, losing only five of them. A number of suits are still pending. Merck won a victory in May, when a New Jersey judge tossed out a class action seeking to recover secondary expenses resulting from use of the drug.

After the 2008 settlement was announced, California Attorney General Jerry Brown charged that Merck “convinced hundreds of thousands of consumers to seek Vioxx prescriptions before the drug’s risk were fully understood.”

Vioxx was especially popular during its time on the market, with sales totaling $3.5 billion in 2003. Rogers, the Merck spokesman, said that the company will “vigorously defend itself against the claims.”

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