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Merck wins two more Vioxx cases

1. In a case previously scheduled to begin September 11 in Atlantic City, Patricia Hatch had claimed that her husband (who had no record of ever purchasing Vioxx) had received two years of free samples of Vioxx before dying of a heart attack. (See also Aug. 8.) Hatch decided to dismiss her case with prejudice.

2. In July, a Texas state court dismissed the Vioxx lawsuit brought by James Miller II on the principle of judicial estoppel: Miller had failed to list his claim against Merck amongst his assets when he had filed for bankruptcy. (But see Biesek v. Soo Line (7th Cir. 2006).)

Out of 22 cases resolved at the trial level to date, Merck has won thirteen by dismissal with prejudice, won four more at trial, and lost four at trial; a 22nd case, Humeston, was won by Merck at trial, but Judge Higbee granted a new trial (Aug. 17). (And one of the product liability jury wins still required Merck to pay a plaintiff $15 plus attorneys' fees on a consumer fraud theory.) About three hundred more cases have been dismissed without prejudice, and it's unclear how many of those plaintiffs will choose to refile within the statute of limitations.

For many potential plaintiffs in many states, the statute of limitations will have been considered to start ticking on September 30, 2004, and expire on September 30, 2006; we are likely to see one last burst of filings in the next five weeks.



Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.