This is a July 2005 to December 2006 update for our cases regarding Vioxx and Bextra.  Click here to see earlier more detailed updates which were replaced by this current update on July 26, 2005 after meetings at the ATLA conference in Toronto. We are still waiting for most US cases to progress.  In Texas a major trial began on July 11th and ended with a big victory for the Plaintiff Ernst on August 16th.   We are continuing to document and further screen and analyze our existing cases which total over 320 for Vioxx and a small number of Bextra cases.  We have been ordering medical records for many clients in the past six months. Our firm has hired an additional lawyer, Michelle Brown, who is working on personal injury cases and she is working on the Vioxx claims.   In depositions on the US cases an internal Merck memo came out on June 23, 2005  perhaps accidentally, revealing a cover up 5 years ago of information of heart problems from Vioxx from a study where Merck released opposite information knowing that they had a problem.  This will certainly help our case.   Meanwhile here in Canada a Health Canada expert panel after strong lobbying from Merck (as in other countries) voted 12 to 1 to allow Vioxx to be sold in Canada again with strong warnings.  The same panel said Bextra should not be allowed at all.  The recommendation will not be implemented without federal Government approval which did not follow.  This does not mean Vioxx is safe and does not necessarily hurt our case.  It does help Merck in its attempt to show Vioxx benefits can outweigh risks which Merck hopes will help its defence of the many claims.  What really will decide the case is how US juries decide in Vioxx trials after they hear all of the evidence about Merck's conduct in marketing Vioxx.  The Ernst case decision is very helpful.  Because it is an arrhythmia case rather than heart attack or stroke it appeared to be one Merck would likely win before it started.  Evidence showed that the arrhythmia most likely was related to a heart attack beginning but Mr. Ernst died before there was visible damage from the heart attack.  Merck's deceptions about the product were made clear to the jury. We are very confident based on overwhelming evidence that Merck covered up the danger it knew existed and failed to warn doctors or patients of the risks. I participated in summer meetings at the conference of the Association of Trial Lawyers of America in Toronto related to Vioxx and Bextra.  The case against Bextra looks to be very strong.   It is looking to me like Canadians may do best with both Vioxx and Bextra claims in the New Jersey Court if our cases are allowed to proceed there. We are very hopeful that the decision of the jury in that case will send a clear message and lead to resolution of the many claims. Merck is appealing the award and vowed to still fight every case after the jury verdict.  Then Merck announced on August 26, 2005 that it would consider settlement now for some Vioxx cases with long term users (18 months or more) suffering heart attack or stroke with no other risk factors.  We offered to discuss settlement of some of our cases but Merck has backed off of the idea of any settlement of any case.   See the Toronto Star article about our Vioxx case and clients from Friday August 26, 2005. On August 29, 2005 Judge Higbee in New Jersey rejected Merck's attempts to delay the start of the trial of a claim by Mike Humeston who was a 60 year old who took Vioxx for a short time for relief of pain from war wounds and suffered a heart attack but survived.  Merck has presented evidence to show that Vioxx may not have been the cause of the heart attack. They have also been able to get a favourable FDA memo admitted partly into evidence. We have Humeston trial updates as we did for the Ernst trial. The Jury decided on November 3, 2005 in favour of Merck.  Judge Higbee ordered that the next trials will be with Vioxx users of over 18 months. Two cases are now being tried together of Vioxx users of over 18 months who suffered heart attacks.  We are continuing to get many new calls with the recent US court cases underway and we have had a number of recent referrals of clients by lawyers.  We are working with the Locks Law firm www.lockslaw.com who are handling claims from their Cherry Hill, New Jersey office. Their main office is in Philadelphia and they also have a New York City office. On Monday October 24th I was in  Philadelphia and New Jersey meeting with Gene Locks, Michael Galpern and other lawyers and staff of that firm. That firm was correctly concerned that the Humeston case did not have facts which met a standard for a successful claim. We reviewed individual files which I brought with me and many of our claims are now beginning proceedings in the New Jersey court.  In New Jersey there is a one third contingency fee law which means those clients whose cases proceed there will have their fee agreements amended to reduce the percentage slightly from 35% to 33 1/3.  We have reviewed all of our files to assess whether or not each is appropriate to proceed in the New Jersey court.  We have sent many of our files to New Jersey for individual court actions. Some are being returned to us not accepted for various reasons. We are waiting for decisions on which cases will go through New Jersey and which will go with the Canadian class action.  The Locks law firm is in direct contact with many of our clients and our office is writing for medical records for the cases proceeding in New Jersey as they are needed now. Our existing files not proceeding in New Jersey will most likely proceed with the Canadian Class Action where there is a better hope for some recovery. There has been little activity with the Canadian Class Action which is likely to wait for US cases to work towards settlement.  The class action has been consolidated into one case. For new case intake we are focussing on the standard for proceeding in the New Jersey court which has been clarified to a degree by the outcome of the New Jersey cases. It is becoming clear that not all Vioxx users with problems will receive compensation and we are fine tuning our case selection process.  We will not abandon the existing clients who have retained us earlier but we do wish to make clear that not all cases will receive compensation. The first federal court trial started November 28 and ended in mid-December with a mistrial.  A unanimous verdict is required for a federal court jury decision and the jury was 8 to 1 in favour of Merck.   A retrial began on February 6th in New Orleans and Merck won this time with a unanimous verdict. It is another case of a short term Vioxx user who suffered a fatal heart attack.  The Plaintiff only used Vioxx for a month and was 53 years old.  This victory for Merck but does help set a standard for what will be a successful case.  The next trial began in Texas January 24th regarding a Vioxx user, Leonel Garza, who died in April 2001 from a heart attack after using Vioxx less than a month. He had a history of heart disease and other serious risk factors.  In his opening statement the Plaintiff's lawyer said: "Merck takes science and turns it into science fiction." The Jury came back on April 21 with a $36 Million award in favour of the Plaintiff who was a 71 year old short term Vioxx user with a cardiac history.  Most lawyers in the US have been saying it requires over 3 months of Vioxx use and use at the time of a heart attack, stroke or blood clot. We are assisting New Jersey lawyers in preparing for Merck's argument that foreign claimants (including Canadians) should not be allowed to proceed in the New Jersey court. A decision is expected in July on the issue of UK residents having their Vioxx claims allowed to proceed. As this year progresses it is looking clear to me that Merck is working towards a limited settlement strategy which would not put the company into bankruptcy.  We are preparing some of our files with clear facts for liability with a view to settlement or trial of some if necessary.  Those claims are being issued in New Jersey where they follow the many earlier cases there. We have received word back that some of the cases we have sent to New Jersey are not accepted and for others there is a need for immediate work. Where cases are not accepted we have reviewed them again with a view to establishing that they should be accepted. We are consulting with clients whose cases are rejected and encourage them to help us clarify why their case should proceed in the US.  I was in Philadelphia April 7 to 10 to review our claims and strategize with our associated lawyers. This followed success in New Jersey court in the McDarby case where a large verdict was awarded by a jury who also awarded punitive damages.  Although the case of Mr. Cona was dismissed by the same jury they did find Merck committed a consumer fraud in both cases. The most recent Vioxx trial in New Jersey started on Friday  June 2.  It is a case put forward by our colleagues Jim Pettit and Michael Galpern of the Locks Law Firm for a New Jersey resident. It is the case of a 68 year old grandmother, Elaine Doherty who had a heart attack after significant Vioxx use. She had a history of clogged arteries, high blood pressure, high cholesterol, obesity (followed by major weight loss) and diabetes which Merck argued were the causes of her heart attack.  The jury voted 5 to 2 in favour of Merck and the case was dismissed on July 13, 2006. The positive side is that Judge Higbee ruled that Merck had a duty to warn Vioxx users of the dangers of the drug and the jury found that Merck failed to adequately warn Ms. Doherty.  I attended summer meetings of the Association of Trial Lawyers of America, where there was further detailed discussion of the consequences of the Doherty trial and the progress of the Vioxx cases. There was a trial this summer in California which Merck won.  On a positive note the federal trial in Texas ended in a $50 Million dollar verdict for the Plaintiff which was upheld on its liability and punitive damage award of $1 Million by Judge Fallon.  On August 30 Judge Fallon ordered a new trial on damages finding the damage award of $50 million to be unreasonably high. In New Jersey Judge Higbee set aside the verdict in the Merck victory in the Humeston case and ordered a new trial.  The jury had incorrect information as a result of Merck providing misleading information about a study of Vioxx.  The Canadian Class Action has been consolidated and our clients not proceeding in New Jersey will have their claims proceed through it.  The Canadian case will take further procedural steps slowly and most likely wait until Merck is prepared to settle claims before there is any real progress on individual cases.  I am now predicting next fall, 2007, as the time when the first cases will begin to settle in the US with the Canadian class action to follow.

In the US Federal case Judge Fallon has dismissed class action claims of Italian and French plaintiffs. This suggests that foreign claimants including Canadians will not be able to proceed in the US Federal Court.  We now have a decision from Judge Higbee that foreign claimants from Britain can not proceed in the New Jersey Court.  The result of this likely means that Canadians can not proceed with claims in New Jersey. September 30 marked two years from the recall of Vioxx. In New Jersey we have been issuing claims to meet the two year time limit for suing and we are proceeding with those cases.  The Locks law firm has sent out detailed questionnaires required for New Jersey court to our clients whose cases are in the New Jersey court.  We have sent out letters to all clients on the status of their case.  Meanwhile, in the US Federal Court in New Orleans a jury dismissed the claim of Robert Smith of Kentucky finding no liability on Merck.  Mr. Smith only used Vioxx for four months before a heart attack and had several other risk factors.  This shows us again that for individual cases in the US courts it is important to now put forward only the strongest cases.  We have submitted just over 100 cases to the Locks law firm for consideration and only a small percentage have been accepted.  It is looking like those cases will all end up back in Canada in the class action.  We will a have detailed update information on the class action next weekend.  Good news for our Quebec clients came in on November 9th with certification of the Quebec Class Action.  Bad news on November 15 with a victory for Merck in a US Federal Court trial of a Utah man who used Vioxx for over 10 months but stopped for four days before his heart attack.  As expected on November 22, 2006 Judge Fallon in the Federal court of the US refused certification of a national class action because the drug laws are different in each state and would have a different effect on claims from each state.  In Canada this would not be the same as we have different and more encouraging class action law.  Only Quebec has different laws to a degree than elsewhere in Canada and as noted above the Quebec Class Action has been certified.  Our focus is now turning to certification of the Ontario proceedings for all of Canada other than Quebec. Settlement of Canadian claims will follow after there is settlement of cases in the US and that is not likely to happen soon. Recent cases in the US going to trial have not been overly to our cause.  In mid December an Alabama jury rejected the claim of a one year Vioxx user who suffered a heart attack finding no breach by Merck of a duty to warn. We remain, as this year comes to an end, far from settlement.  We must continue to be persistent and patient.  Murray Miskin,  December 22, 2006