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Court Revives Vioxx Drug Case

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By William Vogeler, Esq. on February 06, 2019 6:00 AM

After Merck took Vioxx off the market in 2004, Jo Levitt sued the company for her cardiovascular injuries.

That was in September 2006; she had been taking the pain reliever for seven years. In Levitt v. Merck & Company, Inc., a trial judge said she waited too long.

However, the U.S. Eighth Circuit Court of Appeals reversed. A majority panel said her claims were not barred under Missouri's statute of limitations.

Scientific Acceptance

Missouri has a five-year statute of limitations for personal injury claims. Levitt's claim did not begin to run until the adverse affects became "widely accepted in the scientific community," the appeals court said.

Between 1999 and 2004, scientists became "increasingly confident" that Vioxx presented a risk of cardiovascular injuries. But it was not certain -- even by Merck's own statements.

The company made public arguments that "no sound conclusions relating to cardiovascular risks could be drawn from available studies," the Eighth Circuit noted.

In 2008, a long-term study confirmed heart risks associated with Vioxx. Researchers said the drug doubled the risk of strokes and heart attacks.

Matter of Law

In dissent, Judge Steven Colloton said there was no dispute about the scientific literature, media reports, or lawsuits before Levitt filed her suit. He agreed with the trial judge, and would have affirmed the summary judgment.

The majority said such public information is relevant but "not determinative as a matter of law." The majority sent the case back to the trial judge.

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