The Vioxx Litigation Information: Pharmaceutical Product Liability Theories of Action; Possible Vioxx Multi-District Litigation; Vioxx Class Action vs. Separate Prosecution of Individual Vioxx Cases.

California Vioxx Lawyers, Nick Allis and Ray Henke, Discuss The Currently Most Probable Legal Bases on Which Merck Will be Held Liable For Heart Attack, Stroke and Other Injuries Caused by Vioxx. Also, the Possible Merits of Vioxx Class Action and the Necessary Limitations on Vioxx Class Action. Also, an Analysis of Advisability of Obtaining Independent Vioxx Lawyer Advice Whether Class Action or the Separate Prosecution of Your Individual Litigation Will Best Serve You.

Lawyers may approach the Vioxx litigation on a number of legal theories or basis provided by the laws of the states in which the injuries occurred, or by state or national class actions asserting various legal bases. The cases may be removed to the federal court and ordered into multidistrict litigation for joint pre-trial purposes. Class actions may be filed and some lawyers may determine that it will benefit certain of their clients to opt them into the class actions. There are advantages and disadvantages to each approach a Vioxx attorney may chose in the representation of his client.

It is early still to predict precisely how the Vioxx litigation will be framed. Tthe evidence, particularly the evidence that will be obtained from discovery, including in-house documents and depositions of the Merck company hierarchy, including what the company knew and when, and what it decided at each step, will also determine the Vioxx lawyers perspectives on how best to pursue Vioxx litigation, particularly if further evidence to support punitive damage claims is discovered..

Based upon the studies demonstrating the association of Vioxx with cardiovascular events and in particular, heart attack and stroke, as well as the September 2001 FDA warning letter asserting that the Merck advertising was false or misleading, perhaps the most obvious legal basis for Merck potential liability arising out of its continued marketing of Vioxx may be "failure to warn" theory. The legal cause of action is composed of legal elements which must be established, however, "failure to warn" theory is essentially what it implies, that the defendant had an obligation to warn of its durgs adverse effects, or based on the information the adverse reactions found to be associated with use of its drug it owed a duty to warn, and nevertheless failed to warn its consumers. There are legal nuances between failure to warn theory in negligence and strict liability across the laws of the states and Vioxx lawyers will frame their causes of action accordingly, however, from a lay informational perspective, this Vioxx attorney would suggest first that "failure to warn" theory generically is perhaps the most obvious theory at least for most Vioxx cases based on the information currently available.

As the evidence develops, in addition to the substantive causes of action, which may also involve intentional torts, it is likely also that claims will be made for punitive damages. Punitive damages are not an element of damages to compensate you for your injuries; rather they are damages in addition to your compensatory damages which may be awarded to punish the defendant pharmaceutical company or to set an example of the pharmaceutical company, generally speaking, for its fraud, malice or oppression. There are variations in the laws of the states, however, one can think of "malice" as approximating a willful and/or conscious disregard of the lives or health of the drug's consumers. One indication to these California Vioxx lawyers that the evidence to be developed may well demonstrate Merck's liability for punitive damages is that the Vioxx advertising failed to acknowledge the Vioxx study evidence of Vioxx adverse reactions, in particular cardiovascular incidents, blood clotting, and stroke, and only changed its advertising to add heart attack as an adverse effect following the FDA's warning letter. Indeed, supportive of these California Vioxx attorneys proposition that Merck may be held liable for punitive damages in many Vioxx cases is the FDA's September 2001 warning letter, inter alia, that Merck's Vioxx advertising was false or misleading.

In the FDA warning letter sent to Merck President and CEO Raymond V. Gilmartin, the FDA stated:

"You have engaged in a promotional campaign for Vioxx that minimizes the potentially serious cardiovascular findings that were observed in the Vioxx Gastrointestinal Outcomes Research (VIGOR) study, and thus, misrepresents the safety profile for Vioxx. Specifically, your promotional campaign discounts the fact that in the VIGOR study patients on Vioxx were observed to have a four to five fold increase in myocardial infarctions (MIs) compared to patients on the comparator nonsteroidal anti-inflammatory drug (NSAID), Naprosyn (naproxen)."

While Merck added "heart attack" to its list of side effects, it did not add stroke or any of the other adverse reactions found to be linked to Vioxx use by the VIGOR and Cleveland studies. The FDA warning letter does not undercut Merck's obligation to the consumer to warn of all adverse side effects of its drug in addition to heart attack. Merck owes is obligation to warn to the consumer. The fact that the FDA found that the Merck advertising "misrepresented" the safety profile on Vioxx is simply very good initial evidence of Merck's fraud on the Vioxx consumer, to be buttressed by evidence to be developed in discovery in the cases.

In previous pharmaceutical litigation it was attempted by the plaintiff's lead counsel committee in combinations with the pharmaceutical defendant to fashion a "mandatory class action" and settle the cases of thousands of very seriously injured children alleged to have suffered birth defects as the result of the drug for an total settlement which would have left each individual child with but a few thousand dollars as his or her recovery. The Federal District Court "certified the mandatory class" and approved the settlement. Because the class was certified as a "mandatory class action" the individual plaintiffs were not permitted the opportunity to "opt out" of the class action. Vioxx lawyer, Mr. Henke, for one individual client, filed a "writ of mandamus" a type of appeal, to the Federal Circuit Court, arguing that the mandatory class certification and settlement denied his client his right to the attorney of his choice and control over his individual litigation. Many lawyers from around the country joined in Mr. Henke's petition, and the Court of Appeals accepted the argument set forth in Mr. Henke's petition, voiding the class certification and overturning the class settlement holding that mandatory class action, as opposed to voluntary class action (where the individual plaintiff may "opt in" or "opt out") can be used only in the very unusual and very restricted circumstance where it can be demonstrated that the defendant has a "limited fund" available to pay the claimants. The lengthy and reasoned opinion of the Court of Appeals upon this Vioxx lawyer's petition for writ of mandamus was published and constitutes a landmark federal judicial opinion defining the legitimate use of class action through this day. In re Bendectin, 749 F.2d 300 (6th Cir. 1985). See, also: R. L. Henke, "Mandatory Class Action," Trial Magazine" the legal journal of the Association of Trial Lawyers of America, May, 1985

California Vioxx attorney, Henke, has also prosecuted one of the most highly publicized medical drug fraud and punitive damage cases in United States history, arising out of the misrepresentation of the AIDS drug Viroxan, which had been purported by its manufacturer to be beneficial in the treatment of HIV and AIDS. The case was chronicled in legitimate newspapers across the country from a front page article in the New York Times to the front page "Column One" Los Angeles Times, in cover and feature legal and lay magazine articles, and on national television, including Tom Brokaw's NBC Nightly News and CNN. Vioxx lawyer, Mr. Henke, also testified before Congress at the invitation of the Chairman of the House of Representatives Judiciary Committee about the AIDS Medical Drug Fraud cases and specifically his pursuit of punitive damages against the drug's manufacturer and the physicians and hospitals which participated in making the drug available to HIV and AIDS patients. Mr. Henke's experts in the case included Luc Montagnier, the discoverer of HIV and head of France's National AIDS Laboratories, Michael Gotlieb, the discoverer of AIDS and co-founder of the American Foundation for AIDS Research (AMFAR), Don Francis, the wonderful epidemiologist who headed the CDC's first AIDS task force and discovered that AIDS was a sexually transmitted disease and a dozen others of the most highly regarded AIDS scientists in the world. Before the trial Mr. Henke took a writ of mandamus from an adverse trial Court ruling applying new tort reform law which would have denied Mr. Henke's clients their rights to claim punitive damages. The Court of Appeals granted Mr. Henke's petition and ordered the trial court to permit Mr. Henke to proceed with his clients punitive damage claims.. Mr. Henke tried together the cases of 5 of his clients in the first AIDS Drug Medical Fraud trial in the United States, a trial lasting over 4 months, yielding a multimillion dollar jury verdict, including punitive damages against the hospital.. This Vioxx lawyer was recognized by his trial lawyer peers for his work in the Viroxan cases, including his nomination as "Trial Lawyer of the Year" by LATLA. Required disclaimer: Please note that results obtained in any particular case are based on the facts of the particular case and the result may vary with different facts.

The broad pharmaceutical product liability experience of Vioxx lawyers nationwide, including Mr. Allis and Mr. Henke, will be important in framing the causes of action and elements of damage, possibly including punitive damages, against Merck, and in determining on a case by case basis whether their individual Vioxx client will be best served by joining in Vioxx class action litigation.

You may consider others of the California Vioxx lawyers' pharmaceutical product liability attorney qualifications on other pages of this web site. The forgoing discussion of the possible legal theories is not intended as complete by any means but rather a lay explanation of potential directions the Vioxx litigation may lead as further evidence is developed. The limited overview is based upon his education, training and experience of these Vioxx lawyers from their broader experience in pharmaceutical litigation. The information provided above is by no means complete and indeed, as noted, the legal theories asserted by lawyers in the Vioxx litigation will evolve as the discovery in the cases evolves. The discussion above is provided for informational purposes only. It is not legal advice, let alone advice that should be relied upon by a lay person in analyzing whether he may have a viable Vioxx case. For legal advice with regard to your case you must contact a Vioxx lawyer. You may contact Vioxx attorneys Mr. Allis and Mr. Henke for a free case evaluation by calling (877) 370-3233 or by clicking the contact button and submitting the Vioxx case information questionnaire. These California Vioxx Lawyers will consider xerving as Vioxx Lawyers in Northern California and Southern California in Los Angeles the San Francisco Bay Area San Diego Orance County and San Jose as your Vioxx Attorneys. Please keep in mind that consulting this web site does not create an attorney client relationship with regard to your potential Vioxx case, nor would contacting Mr. Henke or Mr. Allis by telephone or submission of the Vioxx attorney informational questionnaire. Consultations with this Vioxx lawyer are free of charge. An attorney-client relationship with Mr. Henke or Mr. Allis or their firms can only be established by a written contract signed both by you and Mr. Henke.