In re Vioxx Products Liability Litigation, MDL NO. 1657.
| Decision Date | 08 November 2007 |
| Docket Number | No. MDL NO. 1657.,MDL NO. 1657. |
| Citation | 522 F.Supp.2d 799 |
| Court | U.S. District Court — Eastern District of Louisiana |
| Parties | In re VIOXX PRODUCTS LIABILITY LITIGATION. This Document Relates To: DeVito, et al. v. Merck & Co., Inc., No. 07-562 (regarding only James Barrall, Carol Ciabattoni, and Alonzo Dusi) Alvarado, et al. v. Merck & Co., Inc., No. 06-7150 (regarding only Milagros Medina-Alfanador) Pales v. Merck & Co., Inc., No. 07-1389 |
Before the Court is Merck & Co., Inc.'s second Motion for Summary Judgment (Rec.Doc.12725) on statutes of limitations grounds. As it now stands, the, instant motion addresses the claims of three plaintiffs from Pennsylvania, one plaintiff from Puerto Rico, and one plaintiff from Illinois, all of which are part of this MDL in the three above-captioned cases.1 On March 22, 2007, the Court denied a similar motion involving three individual plaintiffs from Alabama, Tennessee, and Kentucky. See In re Vioxx Prods. Liab. Litig., 478 F.Supp.2d 897 (E.D.La.2007). In that decision, the Court found that factual disputes precluded a summary determination of when the applicable statutes of limitations began to run, and therefore the Court did not reach the issue of whether the relevant limitations periods had been tolled, either by the pendency of class actions or otherwise. Id. at 908-10. At that time, the Court was concerned that eventually it could "conceivably be faced with the task of applying each state's statute[s] of limitations in this multidistrict litigation," id. at 902, a daunting task and one not to be undertaken until the litigation had matured.
This litigation has now matured to a point at which it is appropriate to consider these issues in greater detail. It is now clear that the factual disputes identified by the plaintiffs regarding when they knew or could have been put on notice of potential claims against Merck are baseless disputes. First, the highly publicized withdrawal of Vioxx from the market on September 30, 2004 and the immediate media blitz that followed linking Vioxx use to increased cardiovascular risks gave ample notice to potential claimants and triggered the applicable statutes of limitations in these cases. Second, the plaintiffs' claims in the above-captioned cases, most of which were filed beyond the applicable limitations periods, are not saved by any state-law tolling doctrines. Thus, the bulk of these claims are time-barred. Accordingly, Merck's motion will now be GRANTED IN PART and DENIED IN PART such that the claims of the identified plaintiffs will be DISMISSED WITH PREJUDICE in their entirety, except for the Illinois plaintiff's common-law fraud claim, which appears to be timely on its face.
This multidistrict products liability litigation involves the prescription drug Vioxx, known generically as rofecoxib. Merck, a New Jersey corporation, researched, designed, manufactured, marketed, and distributed Vioxx to relieve pain and inflammation resulting from osteoarthritis, rheumatoid arthritis, menstrual pain, and migraine headaches. On May 20, 1999, the Food and Drug Administration ("FDA") approved Vioxx for sale in the United States.2
Vioxx was subjected to a number of studies and tests both before and after its initial approval. In March 2000, Merck received the preliminary results of the Vioxx GI Outcomes Research ("VIGOR") study. VIGOR was an 8,000-patient trial designed to assess the relative incidence of gastrointestinal perforations, ulcers, and bleeds ("PUBs") in rheumatoid arthritis patients treated with Vioxx as compared to those treated with the drug naproxen. While VIGOR demonstrated that patients taking Vioxx suffered fewer serious gastrointestinal PUBs than patients taking naproxen, it also showed that patients on Vioxx suffered a statistically significant increase of serious cardiovascular thrombotic events compared to patients taking naproxen.3 In light of the new data obtained in the VIGOR study, Merck submitted a proposed label change for. Vioxx to the FDA in June 2000. The FDA eventually approved a revised Vioxx label on April 11, 2002.
Following the public release of the VIOR data, the media began reporting as early as 2000 that the use of Vioxx might be linked to increased cardiovascular risks.4 Indeed, the first Vioxx-related class action was filed in 2001 shortly after the announcement of the VIGOR results. See Lettieri, et al. v. Merck & Co., Inc., et al., CV 01-3441 (E.D.N.Y. filed May 23, 2001). Widespread press coverage continued following FDA approval of a revised Vioxx label in 2002.5
On September 23, 2004, an external safety board monitoring the results of a separate long-term study, known as APPROVe, informed Merck that the interim data from this study showed a significantly increased rate of cardiovascular events in the Vioxx arm as compared to the placebo arm of the study. One week later, on September 30, 2004, Merck voluntarily withdrew Vioxx from the market. In conjunction with the withdrawal, Merck's then-CEO Raymond Gilmartin issued a public letter to patients informing them of the risks exposed by the APPROVe study and one of Merck's Vice Presidents sent a similar letter to doctors and pharmacies nationwide. See Def.'s Mot. for Summ. J. Ex. 11 & 12.
The withdrawal of Vioxx from the market was arguably the largest and mostpublicized prescription drug withdrawal in this country's history. It is estimated that 105 million prescriptions were written for Vioxx in the United States between May 20, 1999 and September 30, 2004. Based on this estimate, it is thought that approximately 20 million patients have taken Vioxx in the United States. The announcement that this widely popular drug was being withdrawn from the market was met with an immediate avalanche of media coverage. On the morning of September 30, 2004, the national television network morning shows reported extensively on the withdrawal of Vioxx, including NBC's The Today Show, ABC's Good Morning America, CBS's Early Show, and CNN's American Morning. National coverage continued throughout the day with reports on National Public Radio and the networks' evening news broadcasts. The next day, October 1, 2004, saw more television coverage of the withdrawal and an onslaught of front-page stories in newspapers across the country.6 This avalanche of media coverage penetrated into local markets as well, with local television stations and newspapers across the country running similar reports, including in Pennsylvania, Puerto Rico, and Illinois.7
On October 22, 2007, Merck filed the instant motion for summary judgment on statutes of limitations grounds in several individual cases. A brief summary of the facts of each case that remains subject to the motion follows:
• Pennsylvania: James Barrall, Carol Ciabattoni, and Alonzo Dusi reside in Pennsylvania. James Barrall began using Vioxx in November 2002 and allegedly suffered a stroke in May 2003. It is not clear from the record when Carol Ciabattoni began using Vioxx, but she allegedly suffered a heart attack in October 2003. Alonzo Dusi alleges that his wife Catherine Dusi began using Vioxx in November 2002 and that she suffered a heart attack and died on February 7, 2003. These three plaintiffs' claims were filed on February 1, 2007 in this Court as part of DeVito, et al. v. Merck & Co., Inc., No. 07-562.
• Puerto Rico: Milagros Medina-Alfanador resides in Puerto Rico and began using Vioxx in December 2000. She allegedly experienced strong pain and throbbing in her heart in 2001. Her claims were filed on October 2, 2006 in this Court as part of Alvarado, et al. v. Merck & Co., Inc., No. 06-7150.
• Illinois: Ronald Pales resides in Illinois. He began using Vioxx in August 1999 and allegedly suffered an ischemic stroke on August 1, 2001. His case was filed on January 10, 2007 in Illinois state court and was subsequently removed and transferred into this MDL and assigned the following case number in this District: Pales v. Merck & Co., Inc., No. 07-1389.8
Merck argues that the bulk of these plaintiffs' claims are time-barred pursuant to any conceivably applicable statutes of limitations and, therefore, that it is entitled to summary judgment. More specifically, Merck contends that at the very latest, the various limitations periods began to run on September 30, 2004 when Vioxx was withdrawn from the market, and that the plaintiffs are not entitled to any form of tolling beyond this date under the relevant state laws. Merck also argues that, although timely, the remainder of the plaintiffs' claims fail as a matter of law for various reasons.
Re-urging the arguments it made in opposition to Merck's first statutes of limitations motion, the Plaintiffs' Steering Committee argues that the plaintiffs' claims are timely based on a combination of the discovery rule and the fraudulent concealment doctrine (both of which may delay the running of limitations periods) and tolling of the applicable limitations periods under the doctrine announced in American Pipe & Construction Co. v. Utah, 414 U.S. 538, 94 S.Ct. 756, 38 L.Ed.2d 713 (1974). See Rec. Does. 12846 & 9548. Additionally, the Court has also received timely case-specific oppositions from all five individual plaintiffs that remain subject to Merck's motion. See Rec. Does. 12911, 12890, and 12938. The Court will address the plaintiffs' various case-specific arguments below during its discussions of the relevant state laws.
Summary judgment is appropriate if "there is no genuine issue as to any material fact and ... the defendant is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). While "[t]he issue of whether a suit is time-barred is a question of law, which properly may be resolved at the summary judgment stage," this is only true "if there are no genuine issues of material fact in dispute." In re Minn. Mut....
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