Products Liability Law Daily Personal injury suit against Vioxx® maker wasn’t time-barred
Wednesday, February 6, 2019

Personal injury suit against Vioxx® maker wasn’t time-barred

By Matt Pavich, J.D.

Scientific consensus on a possible link between a drug and cardiovascular injury was not sufficiently settled to put a patient on notice of her potential claim, a federal appellate panel ruled, reversing the trial court’s grant of summary judgment favoring the drug manufacturer based on Missouri’s statute of limitations.

The applicable statute of limitations in a personal injury case had not expired when a patient filed suit because the medical consensus around the causal link between the anti-inflammatory drug Vioxx® and cardiovascular injuries had not become sufficiently settled such that a reasonable person would have been put on notice of the link, the Eighth Circuit Court of Appeals ruled. The appellate panel reversed a Missouri federal district court’s grant of the drug manufacturer’s motion for judgment on the pleadings (Levitt v. Merck & Co., Inc., February 4, 2019, Gruender, R.).

The patient began taking Vioxx, manufactured by Merck & Company (Merck), in 1999. She suffered two incidents of cardiovascular injury in 2000, but continued taking the drug until Merck changed the label to disclose the risk of cardiovascular injury. She filed a personal injury suit in September 2006, after which Merck moved for judgment on the pleadings, contending that Missouri’s five-year statute of limitations had expired. The trial court granted the motion.

Capable of ascertainment. The appeals court reversed the lower court, noting that under Missouri law, the statute for personal injury claims begins to run when damage has been sustained and "is capable of ascertainment." The Missouri Supreme Court has defined that phrase to mean when the evidence would place a "reasonably prudent person" on notice of a potential claim.

According to the appellate panel, the evidence in the instant case was not sufficient to put the patient on notice of her potential claim. Although scientists had become "increasingly confident" of the link between Vioxx and cardiovascular injury, the scientific consensus was unsettled. In August 2006, one month before the patient filed suit, a peer-reviewed article in the Journal of the American Medical Association (JAMA) found "considerable uncertainty" in analysis of studies on the link. Additionally, Merck was arguing at the time that available studies had not resulted in conclusory evidence regarding the link.

According to the panel, that uncertainty likely would have led the Missouri Supreme Court to find that the statute of limitations had not expired. It found instructive a state court of appeals decision which found the statute of limitations had not run in a case in which the scientific community was only beginning to find a link between a chemical and respiratory complaints. Similarly, the Eighth Circuit observed that in the case at bar, the causal link between Vioxx and cardiovascular injury was only starting to become clear when the patient filed her suit. Although the national media had begun reporting on a possible link, the appellate court found that this fact was not determinative and reversed the district court.

Dissent. Judge Colloton dissented, citing a number of articles that at the relevant time had reported on a possible link. He also noted that the JAMA article relied on by the majority showed a "significantly increased risk" of cardiovascular injury for patients using Vioxx. Moreover, as early as July 2001, other plaintiffs had filed suit alleging that Vioxx had caused them to experience cardiovascular injuries. He found that these articles, lawsuits, and studies should have put the patient on notice before September 2001 and that requiring "definitive proof of causation" would "swallow the inquiry notice rule."

The case is No. 17-2630.

Attorneys: Kenneth Blair McClain (Humphrey & Farrington) for Jo Levitt. Peter Bay (Bryan & Cave) and Paul Edward Boehm (Williams & Connolly LLP) for Merck & Co., Inc.

Companies: Merck & Co., Inc.

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