Austin attorneys reviewing hundreds of potential Vioxx cases

Jonathan Selden
Austin Business Journal Staff

You almost could hear the "cha-chings" all the way from the East Texas town of Angleton.

An Angleton jury's recent $253.4 million Vioxx verdict against pharmaceutical maker Merck & Co. Inc. creates the potential for big-money settlements for Austin plaintiffs' law firms with Vioxx suits on their dockets.

Austin law firm Slack & Davis LLP is one of the area's major players in Vioxx litigation, "reviewing hundreds of cases from all over the U.S.," partner Donna Bowen says. However, the number of Vioxx cases to be handled by the firm hasn't been determined.

Another Austin attorney, Tommy Jacks of Mithoff & Jacks LLP, says his firm has filed "just under a hundred [Vioxx] cases so far, and there are perhaps twice that many that we're still investigating." He says he has filed roughly a dozen of those cases in federal court in Austin.

The cases involve Merck's knowledge of alleged cardiovascular dangers associated with taking Vioxx. After internal research showed an increased risk of heart attack, the company voluntarily recalled the painkiller last September.

The Angleton verdict "is a clear message that Merck's documents make a jury angry," Bowen says. "The jury is saying that 'We don't approve of your conduct.'"

Whitehouse Station, N.J.-based Merck (NYSE: MRK) says it will appeal the Angleton ruling, which is likely to be reduced under Texas' limits on punitive-damage awards.

"We believe that we have strong points to raise on appeal and are hopeful that the appeals process will correct the verdict," Kenneth Frazier, Merck's senior vice president and general counsel, says in a statement.

Nonetheless, Bowen says the Angleton verdict doesn't alter Slack & Davis' strategy.

"We're not going to sign up ... cases that don't have merit," she says.

Although Merck's Frazier says "there are other Vioxx cases coming to trial and we will vigorously defend them one by one over the coming years," Bowen says she isn't deterred and expects to take the firm's first Vioxx cases to trial next year. She says most of her firm's potential cases are from Texas.

Even Texas Attorney General Greg Abbott has joined the Vioxx legal rush.

He's suing Merck in Travis County District Court. The claim: Merck forced Vioxx into the state's Medicaid program.

The suit alleges Texas paid $56 million for allegedly faulty Vioxx medication and accepted Merck's pitch that Vioxx should be added to the list of approved Medicaid drugs. Abbott's suit seeks $168 million in damages.

"This unanimous verdict by a Texas jury validates why my office brought suit against this company in the first place," Abbott says in a statement.

"The verdict also shows why Texas deserves to get its money back from Merck. The company purposely peddled a drug on the open market that it knew could harm people. Merck compounded this problem by giving false information to the state's Medicaid program about the drug's safety."

But Abbott's case isn't going quite as smoothly as others are.

Earlier this month, Merck filed a motion to move the case to federal court in Austin. That procedural step would transfer the case to what is viewed as the more corporate-friendly territory of the federal court system.

In his motion to shift the case back to the state court system, Abbott says Texas' "allegations in the lawsuit arise solely from [Merck's] misrepresentations of the risks associated with the drug Vioxx, which violate ... the Texas Medicaid Fraud Prevention Act."

"The company is clearly trying to evade justice by using these delay tactics," Abbott says in a statement.

"This is a major disappointment to the taxpayers of Texas, who deserve to be reimbursed for the company's wrongful scheme to defraud Medicaid. I urge Merck to stop evading their obligations. A Texas jury deserves to hear evidence of fraud in a Texas district court."

Next, Merck moved to consolidate Abbott's Texas case with thousands of other federal Vioxx cases before the federal multidistrict litigation judge in New Orleans.

In response, Abbott says: "Merck took almost $60 million from Texas taxpayers and knowingly endangered the health of our citizens. Now the company is running from its responsibility by trying to flee to Louisiana. Texans deserve better from a company that insists on doing business here."