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Vioxx Claims Lawyers
Rocky Mountain Region
Utahns among thousands suing the makers of Vioxx
The Salt Lake Tribune - August 27, 2005
By Pamela Manson and Carey Hamilton
Marilyn Nestman, 76, of Bountiful, is among thousands of people nationwide suing Merck & Co., the manufacturer of the painkiller Vioxx they say has damaged their health. Nestman suffered a stroke and still feels the effects. (Ryan Galbraith/The Salt Lake Tribune)
Her family first realized something was wrong when Marilyn Nestman appeared to be dozing at a gathering, unaware of the activity surrounding her. In Robert Radke's case, the first sign came when he felt a sudden pain in the back of his head, as if someone had hit him. The two Utahns were quickly diagnosed with strokes. Nestman was left with difficulty speaking and writing, and Radke is partially blind. Both later became convinced that the culprit was Vioxx, a prescription painkiller they were taking for arthritis. They now are among the thousands of people nationwide suing Merck & Co., the New Jersey-based manufacturer that voluntarily pulled the painkiller from shelves in September. Earlier this month, a Texas jury awarded a whopping $253.4 million -- $24.4 million in actual damages and $229 million in punitive damages -- to a widow who blamed her husband's death on Vioxx. That verdict, the first in a Vioxx lawsuit, further convinced Radke and Nestman that the drug harmed them. Several Salt Lake City lawyers representing Utahns in Vioxx cases agree the Texas verdict is a good sign for plaintiffs, but believe the pharmaceutical giant will not enter into a national settlement unless it loses more cases. For now, the company has denied wrongdoing, says it will appeal and plans to fight the thousands of lawsuits alleging it knew Vioxx carried an increased risk of heart attack and stroke but withheld the information. John Black Jr., who represents Nestman, said if the company starts losing more cases, it might start negotiating. "It's added pressure to come to grips with the injured people," he said. Edward McBride Jr., Radke's lawyer, and attorney Jeffrey Robinson agreed legal expenses could eventually prompt settlement talks. "Merck ought to understand from a verdict like this that the public is not going to stand for the kind of omissions made" in warning about the risks of Vioxx, Robinson said. Attorneys are estimating that nearly 5,000 Vioxx suits have been filed. The number of individuals suing is difficult to estimate because some cases have one plaintiff, and others have many. Michael Burg, a Colorado attorney who represents plaintiffs suing Merck, including some Utah residents, claims 700 to 1,500 Utahns were injured by the medication. He says the jury decision shows the outrage over Merck's actions. "They put profits over safety," the attorney said, contending company officials wrote a script to help its sales force dodge questions from doctors about risks to patients. On Friday, Kent Jarrell, a spokesman for the Merck defense team, said the company expects to be trying cases for years. "The company has always said that every case presents a different set of facts," Jarrell said. "As a result, we will defend each and every case. We have no intention of entering into any kind of global settlement. We expect to be trying these cases for many years." He implied, though, that a few cases might be settled. "We do expect to take a close look at a small subset of cases concerning long-term ingestion of Vioxx, basically 18 months of continuous use or more," Jarrell said. "We'll examine those cases in very exacting detail and then we'll make a reasonable decision on how to proceed." Radke was 34 when he had his stroke in January 2004. The Sandy man and married father of three lost his peripheral vision in both eyes on the right side. He no longer can drive, and travels an hour and a half each way by public transportation to his job as a technician at the University of Utah Medical Center. Turning his head even slightly causes him to lose sight of what's in front of him. "I constantly bump into things," Radke said. "I walk into people." Radke believes Merck rushed Vioxx to market without adequate studies to beat competing drug companies. Nestman also has been distressed by the changes in her health. The 76-year-old Bountiful woman starts each day by praying, but one morning found it impossible to say the words. She has trouble remembering names, sometimes can't put her words in order and needs help writing letters. Since her stroke, husband Lo Nestman notices occasional spells of depression and son Mark Nestman has twice found her collapsed in the house after transient ischemic attacks, or mini-strokes. "I write to the kids on their birthdays and I look at them and wonder, 'Is this OK?' " Marilyn Nestman, the mother of five adult children and numerous grandchildren, said of her struggle. She remains mostly upbeat, however, and says she understands that drug companies want to find medications to help people. She's also grateful for the support from her family. "I appreciate the way I am," Nestman said. "I can talk but I can't write. I like to think of myself as a normal human being." Her son is still angry, though, saying Merck should have issued more warnings before releasing Vioxx. "They should have done more research," Mark Nestman said. Don Stromquist, a Salt Lake City doctor who specializes in rheumatology and osteoporosis, believes the Vioxx withdrawal has encouraged doctors to more carefully take into account patients' age, sex and health when deciding upon medications. Patients who aren't at risk for ulcers can be treated with older drugs, such as ibuprofen or naproxen, an over-the-counter pain reliever sold under the brand name Aleve. "I question with Vioxx and every prescription drug whether its benefits justify the risks," Stromquist said. "All drugs have risks. Drugs like Vioxx have certain features that are superior, and, in certain patients, drugs like Vioxx may be safer." If Vioxx came back on the market, the doctor said, he would get calls from patients wanting to take it. Judith Krengel of Centerville, who took Vioxx on and off for five years to treat arthritis and fibromyalgia, would not resume taking the medication. "I'm taking two different medications now to do the same thing that Vioxx did to deal with pain and inflammation," said Krengel, 54, who works at the Davis County Health Department. "But I probably wouldn't take Vioxx again because I have more than just arthritis. My illness affects my lungs, and I wouldn't take anything that might damage my heart." Still, Krengel, who has no plans to sue Merck, was caught off-guard by the jury award in Texas. "I think it's awfully high," she said. "It does surprise me because there's no way of proving it happened because of Vioxx."
The first verdict:
A Texas jury awarded a widow $253.4 million, with $229 million of it in punitive damages, on Aug. 19. Jurors used a Merck document that estimated it would have lost $229 million in sales if information about the heart risk had been added to the Vioxx label several months earlier, according to Michael Burg, a Colorado attorney who represents plaintiffs suing Merck. Under a Texas law capping punitive damages, the total award will be reduced to $26.1 million.
What's next:
There are three September trials scheduled in state courts, one in New Jersey and two more in Texas.
Where are Utah's cases?
All federal Vioxx lawsuits, including those filed in U.S. District Court in Salt Lake City, have been sent to a judge in New Orleans for pretrial hearings. Once those rulings are made - such as what evidence will be allowed - the cases will be sent back to their home states for trial. Lawsuits filed in state courts are going forward separately.
Article has been reprinted with permission of The Salt Lake Tribune.
