Plunkett v. Merck & Co.

414 F. Supp. 2d 574, 2006 WL 344997, 2006 U.S. Dist. LEXIS 17301
CourtDistrict Court, E.D. Louisiana
DecidedFebruary 2, 2006
DocketNo. MDL NO. 1657
StatusPublished
Cited by1 cases

This text of 414 F. Supp. 2d 574 (Plunkett v. Merck & Co.) is published on Counsel Stack Legal Research, covering District Court, E.D. Louisiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Plunkett v. Merck & Co., 414 F. Supp. 2d 574, 2006 WL 344997, 2006 U.S. Dist. LEXIS 17301 (E.D. La. 2006).

Opinion

ORDER & REASONS

KNOWLES, District Judge.

Pending before the Court is the Motion of Merck & Co., Inc. to Exclude Testimony of Robert H. Fletcher, M.D., M.Sc. (Rec. Doc. 2858); the Motion of Merck & Co., Inc. to Exclude the Testimony of Michael Alan Graham, M.D. (Rec.Doc. 2981); and the Motion of Merck & Co., Inc. to Exclude the Testimony of Wayne A. Ray, Ph.D. (Rec.Doc. 1117) including its Supplemental Brief in Support of its Motion (Rec. Doc. 2857). For the following reasons, Merck’s motion to exclude the testimony of Dr. Fletcher is GRANTED; Merck’s motion to exclude the testimony of Dr. Graham is GRANTED IN PART AND DENIED IN PART; and Merck’s motion to exclude the testimony of Dr. Ray is DENIED.

I. Background

Vioxx (known generically as rofeeoxib) belongs to a general class of pain relievers known as non-steroidal anti-inflammatory drugs (“NSAIDs”). This class of drugs contains well-known medications sold either over the counter — such as Advil (ibuprofen) and Aleve (naproxen) — or by prescription — such as Daypro (oxaprozin) and Voltaren (diclofenac). NSAIDs work by inhibiting cyclooxygenase (COX), an enzyme that stimulates synthesis of prosta[577]*577glandins, which are chemicals produced in the body that promote certain effects.

Traditional NSAIDs have been a longstanding treatment option for patients needing relief from chronic or acute inflammation and pain associated with osteoarthritis. rheumatoid arthritis, and other musculoskeletal conditions. This relief, however, comes with significant adverse side effects. Specifically, traditional NSAIDs greatly increase the risk of gastrointestinal perforations, ulcers, and bleeds (“PUBs”). This risk is increased when high doses are ingested, which is often necessary to remedy chronic or acute inflammation and pain. Scientists estimated that traditional NSAID-induced PUBs caused a significant number of deaths and hospitalizations each year in the United States.

In the early 1990s, scientists discovered that the COX enzyme had two forms— COX-1 and COX-2 — each of which appeared to have several distinct functions. Scientists believed that COX-1 affected the synthesis or production of prostaglandins responsible for protection of the stomach lining, whereas COX-2 mediated the synthesis or production of prostaglandins responsible for pain and inflammation. This belief led scientists to hypothesize that “selective” NSAIDs designed to inhibit COX-2, but not COX-1, could offer the same pain relief as traditional NSAIDs with the reduced risk of fatal or debilitating PUBs. In addition, scientists believed that such drugs might be able to prove beneficial for the prevention or treatment of other conditions, such as Alzheimer’s disease and certain cancers, where evidence suggested that inflammation may play a causative role.

In light of these scientific developments, Merck & Co., Inc. (“Merck”) and several other pharmaceutical companies began the development of such drugs, which became known as “COX-2 inhibitors” or “coxibs.” Vioxx is a COX-2 inhibitor.

On May 20, 1999, the Food and Drug Administration (“FDA”) approved Vioxx for sale in the United States. From its initial approval, Vioxx gained widespread acceptance among physicians treating patients with arthritis and other conditions causing chronic or acute pain.

Before and after its initial approval, Vioxx was subjected to a number of studies and tests, including, but not limited to, VIGOR, APPROVe, ViP, VICTOR, ADVANTAGE, the Alzheimer’s studies, Professor Kronmal’s reanalysis of Merck’s clinical data, the Solomon study, the Juni study, the Ray study, the Graham study, the Kimmel study, the Levesque study, the Mamdani study, the Ingenix study, the Johnsen study, the Nussmeier study, and the Fitzgerald hypothesis. In addition, a large amount of scientific literature was written on the effects of Vioxx and other COX-2 inhibitors.

On September 30, 2004, Merck withdrew Vioxx from the market when interim unblinded data from a long-term, blinded, randomized placebo-controlled clinical trial, known as APPROVe, seeking to assess whether Vioxx could help prevent the recurrence of precancerous colon polyps, indicated that the use of Vioxx increased the risk of cardiovascular thrombotic events such as myocardial infarctions and ischemic stroke.

Thousands of lawsuits followed in both state and federal court. On February 16, 2005, as a result of the sheer mass of these lawsuits and the potential for many more, the Judicial Panel on Multidistrict Litigation ordered that the Vioxx litigation be centralized, designated as an MDL, and assigned to this Court.

One of this Court’s first tasks was to set cases for early federal court trial. With [578]*578the consent of both the Plaintiff and Merck, this case was set for trial in late November in New Orleans, Louisiana. Due to Hurricane Katrina, the location of the trial was moved with the consent of the parties to Houston, Texas, but the timing of the trial remained the same. The trial commenced as scheduled, but resulted in a mistrial due to the jury’s inability to reach a unanimous verdict. As such, this trial has been rescheduled for February 6, 2006, in New Orleans.

This case involves the death of Richard Irvin, Jr. Mr. Irvin was a 53-year-old man with severe lower back and hip pain. He weighed approximately 230 lbs. and stood 6' tall. On April 9, 2001, he asked his son-in-law, Dr. Christopher Schirmer, an emergency room physician, to give him something for pain. Dr. Schirmer gave Mr. Irvin a prescription for Vicoprofen 7.5/200 mg and Methocarbrnol 750 mg each to be taken once every six hours. Mr. Irvin was unable to tolerate this medication because it produced severe nausea and vomiting. In addition, it provided no significant pain relief.

Subsequently, Mr. Irvin received some samples of Vioxx 25 mg from a friend. He was able to tolerate the Vioxx, and it also reduced his pain. On April 15, 2001, he again contacted Dr. Schirmer and, this time, requested a prescription for Vioxx. Dr. Schirmer sent Mr. Irvin a prescription for 30 tablets of Vioxx 25 mg to be taken once daily. This prescription was filled on April 22, 2001.

On May 15, 2001, while at work, Mr. Irvin suffered a heart attack. Extensive resuscitative efforts were then carried out by the Fire Department Emergency Medical Technicians and later by emergency room personnel at Flagler Hospital in St. Augustine, Florida, where Mr. Irvin had been taken. These efforts were unsuccessful, and Mr. Irvin was pronounced dead at 9:02 a.m. on May 15, 2001. An autopsy revealed an unattached coronary thrombus, or clot, in the left anterior descending coronary artery.

Mr. Irvin’s surviving spouse, Evelyn Irvin Plunkett, has brought this suit against Merck on behalf of herself, Mr. Irvin’s two minor children, and the Estate of Richard Irvin, Jr. She alleges that Vioxx was a defective product, Merck knew Vioxx was defective, and Merck failed to adequately warn Mr. Irvin of Vioxx’s defective nature. As such, she asserts that Merck is liable for Mr. Irvin’s death.

In particular, the Plaintiff asserts that the scientific tests conducted on and the scientific literature written on Vioxx revealed that Vioxx increases the risk of cardiovascular thrombotic events. To put it simply, the Plaintiff contends that Vioxx creates an imbalance between thromboxane and prostacyclin. Thromboxane promotes platelet aggregation, vessel constriction, and proliferation of smooth muscle cells.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

In Re Vioxx Products Liability Litigation
414 F. Supp. 2d 574 (E.D. Louisiana, 2006)

Cite This Page — Counsel Stack

Bluebook (online)
414 F. Supp. 2d 574, 2006 WL 344997, 2006 U.S. Dist. LEXIS 17301, Counsel Stack Legal Research, https://law.counselstack.com/opinion/plunkett-v-merck-co-laed-2006.