State Court Ruling Places all Vioxx Suits in Texas on Hold

Bruce Roberts

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A ruling by a state district judge has resulted in more than 1,000 personal injury lawsuits presently pending in Texas against the pain medication Vioxx on hold until the Judge's order can be appealed. State District Judge Randy Wilson granted a motion by Merck and Company, Inc. the manufacturer of Vioxx to dismiss part of the plaintiffs' lawsuits.

The basis for the order was a law passed in Texas in 2003 designed to protect drug manufacturers whose drugs had been approved by the Federal Drug Administration. The law provides that a drug manufacturer is not liable for claims that it failed to provide sufficient warnings about its product if the drug in question had warnings that had been approved by the Food and Drug Administration.

This ruling effectively puts all cases in Texas against Vioxx on hold until the judge's ruling can be appealed. Merck could not give a time estimate for the appeals process. Attorneys for Texas consumers who took VIoxx oppose the rulling.

We think the court has made an erroneous ruling," Tommy Fibich said. "The effect of his ruling is that it immunizes manufacturers that lie and mislead the FDA."

Fibich said even if appeals courts uphold the judge's ruling, his client and other plaintiffs have two other claims against Merck they can still try to prove in court: negligence and product design.

"I think they are all three good claims," he said. "If I had to pick just one, it would be the failure to warn claim. But in all the cases where plaintiffs have prevailed against Merck, juries have found in favor of the product design and negligence claims."

Fibich said the case will probably go all the way up to the Texas Supreme Court, and he is looking at whether he can file any appeals in federal court.