SUMMARY OF VIOXX BEXTRA CASE PROGRESS:
contents updated July 29, 2005
More recent update available by clicking here
After screening over 2500 contacts we have prepared and mailed out over 550 information packages with a retainer agreement and a detailed questionnaire to people who appear to have claims which currently qualify for our services. We have opened for Vioxx 297 individual files and sent out medical and other authorization forms and update letters to those who have retained us. We have 208 retained clients in Ontario alone. We have 29 clients in BC, 24 in Alberta and clients from every other Province except PEI. We have 10 clients in New Brunswick, 7 in Nova Scotia, 7 in Manitoba two in Newfoundland and one in Saskatchewan. We have 11 English speaking Quebec clients and have referred French speaking people in Quebec to a firm in Quebec City. Of our clients 108 are heart attack cases and the rest are stroke and/or other problems. 23 are fatalities. We have additional files for Bextra claims. At this point we are ordering some client medical records as needed. We are in contact with group health insurers of our clients and OHIP in Ontario to co-ordinate efforts to recover medical and other expenses of our clients as part of the claim. We have been retained by more Vioxx users who have suffered harmful effects than any other law firm in Canada. We are writing new clients every day and receiving back retainer forms each day as well. There have been more inquiries since Dr. Graham's reports of the vioxx death toll were published.
I participated in a meeting on December 8th and 9th when a group of Canadian lawyers co-ordinating vioxx class actions was formed from lawyers across the country. The group is being co-ordinated by the Siskinds firm in London Ontario. Most lawyers working on the class action claims in Canada are now united and working together. A first meeting was held January 10 with Mr. Justice Winkler of the Superior Court of Justice in Ontario to begin the process towards certification and scheduling of an Ontario Class action. He has encouraged all the Canadian lawyers involved to work together and for now he is managing the case. If a Class Action is certified in Ontario all Canadians with claims would automatically be included with a right to opt out at any stage. Steps are being taken to certify class action proceedings in other provinces and Saskatchewan is the first where a certification hearing is being scheduled now with two competing representative firms. The group is working with the firm of Grant Scharfstein in Saskatoon. The firm of Tony Merchant is Saskatchewan is on its own making a wide range of Vioxx related claims but Justice Winkler has asked the Plaintiff lawyer group to attempt to work out matters with Mr. Merchant to end the issue of who will represent Plaintiffs. It looks like no agreement can be reached with Tony Merchant and a carriage motion will be argued in September.
On January 11th I participated in a telephone conference update meeting on the US court actions and developments. I attended California meetings late January and early February with US lawyers working on Vioxx claims including the Association of Trial Lawyers of America Working Group on Vioxx (Cox-2) Litigation. The next major in person meeting of that group was in Toronto on July 26th. At this point the New Jersey courts are allowing claims of Canadians to proceed but that may change which would force non US claimants in US courts to proceed through the Federal Court (not preferred). A national U.S. court co-ordinating meeting took place in Fort Meyers Florida on January 27, 2005 with a surprise ruling on February 16th that the US federal court cases will be managed by Judge Fallon of Louisiana. Judge Fallon is experienced with drug cases and seen as very fair. The choice of courts was not the request of Merck or Plaintiffs lawyers but is one we are happy to have made. Judge Fallon has been very fair in proceedings and is moving the case along quickly. The first trials with him are set for November. In each of California and New Jersey there have been trial dates set for June 2005 and delayed, each with five Vioxx heart attack test cases which were started before the product recall. The US Senate is debating legislation to limit recovery in medical malpractice cases which if passed would also limit drug recovery in cases. It would stop claims for punitive damages and restrict pain and suffering claims to $250,000. Legislation was passed by the US Senate on February 10th 2005 which places new rules and restrictions on US Class Actions. This was passed by the Congress immediately after and signed into law by a happy President Bush. The law as passed is bad for consumers and good for big business but has been watered down by various amendments so that it will not have a major negative impact. The bigger fight in the Senate will be over the claim limiting malpractice legislation. FDA hearings in Washington add much more powerful evidence about Vioxx and other Cox-2 inhibitors. The FDA through an expert panel approved reintroducing Vioxx with restrictions and warnings. The suggestion of selling Vioxx again to patients who sign waivers only helps our case as the victims of the drug and the prescribing doctors had no information at all of its danger. If proper warnings had been given from the start Vioxx would not have been a best seller but there would not be a case for suing for the injury caused. The FDA expert panel included 10 members who had worked on the payroll of Merck and/or Pfizer (maker of Celebrex and Bextra). Of those panellists with a conflict of interest 9 of 10 voted in favour of Vioxx being sold again. Had they not participated in the decision the vote, would have, by a wide margin, gone against allowing Vioxx to be sold again.
As the US situation develops it is looking to me like Canadians may have to proceed in the Federal Court if they bring claims in the US. Our best bet would be the New Jersey court if we can keep our claims there. I am in discussions with New Jersey lawyers. I note that in the US the President and Congress seem more interested in protecting the manufacturers and not consumers while in Canada our Minister of Health has sharply criticized the conduct of Merck. Canadian damage awards are not nearly as high as those historically awarded in the US but our class action laws are far more favourable to consumers. I am continuing to keep options open for now.
On March 2, 2005 the Quebec Court of Appeal ruled against Merck Frosst Canada getting intervener status on another drug case, the Piro case, which is a challenge by a drug manufacturer of Quebec's plaintiff favourable class action law. This is good news for our Vioxx case as Merck is very concerned about a successful Vioxx class action in Quebec which could set a precedent for other parts of Canada and other jurisdictions as well. Once the Piro appeal is decided, it is expected that the Vioxx case in Quebec will proceed to certification more quickly than it will in other provinces, if the current Quebec law is upheld.
We have quietly been working on Bextra claims. Bextra now appears to be even more dangerous for the heart than Vioxx and is linked to very serious other conditions including horrible skin diseases. Now that Bextra has been banned we are accepting Bextra cases and we have developed and sent out a Bextra questionnaire to prospective new clients. We are also accepting claims from people who have suffered from the use of both Vioxx and Bextra. Bextra sales increased when Vioxx was recalled with Pfizer issuing a letter to doctors telling them Bextra did not have the heart problem issues which Vioxx had. During the last three months of 2004 the number of cardiac events attributed to Bextra went way up as many people switched to it from Vioxx.
In early May the CEO of Merck was replaced. For now they will continue to fight every claim about Vioxx but that should change after the first few trials which Merck is expected to lose. Until then we are not taking steps in Court in Canada beyond certification of the class actions which is a slow process. Everyone's rights are preserved by the class actions and we expect settlement will be discussed after US resident cases are starting to settle. Judge Fallon met with lawyers on May 23 and estimated that there will be about 100,000 Vioxx claims. Meanwhile in Texas Jury Selection is set to began on July 11th for the first Vioxx trial in the Ernst case. We update the status of that case .
THE ABOVE INFORMATION IS NOW OUTDATED AND IS AVAILABLE FOR BACKGROUND INFORMATION ONLY