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This post comes only from the Cozen O’Connor side of the blog.

The Vioxx MDL is still alive.  But not really kicking.  The master settlement agreement ended the mass tort portion of this litigation, leaving behind a vastly smaller number of cases filed by plaintiffs who chose not to “opt in” to the settlement.  The MDL court is still managing some of those cases.  But, if Levitt v. Merck Sharp & Dohme Corp., 2015 U.S. Dist. LEXIS 52756 (E.D. La. Apr. 21, 2015), is any indication, it won’t be for much longer.

In Levitt, the MDL court denied Merck’s motion for summary judgment, instead ordering that discovery be reopened.  While that might not sound like the decision of a court looking to end its involvement in the Vioxx litigation, remanding the case to the original transferor court for further proceedings sure does.  And the MDL court did that too.  Id. at * 30.

Merck had two bases for its motion.  The first was deposition testimony of one of plaintiff’s prescriber, Dr. Katz.  Plaintiff alleged that Dr. Katz merely continued a Vioxx prescription that had been started a few months earlier by a Dr. Hartman. Id. at *4-5. She alleged that she had asked Dr. Hartman for Vioxx after seeing Vioxx advertisements.  Id.  Dr. Katz testified, however, that he relied on his own medical training and experience to independently decide to prescribe Vioxx to plaintiff, not the earlier decision of Dr. Hartman or advertisements.  Id. The record indicates that Dr. Katz was the first to prescribe Vioxx to plaintiff for daily use.  Id. at *25-26.  Dr. Katz also said, in what you’d think would be case-ending testimony, that he would still have prescribed Vioxx to plaintiff even if it carried a black box warning on cardiovascular risks.  Id. at *19.  This presents a massive proximate causation problem for plaintiff.  But plaintiff again turned to her first prescriber, Dr. Hartman.  She claimed that discovery was still needed on whether Dr. Harman continued to prescribe Vioxx to plaintiff while Dr. Katz was also prescribing and, if so, whether he would have continued to do so if there were an adequate warning.  She also argued that Dr. Katz was biased because he had been a paid speaker and researcher for Merck.  She apparently offered no evidence of actual bias, however, just evidence of the consulting relationship.  The court decided that this was enough to deny summary judgment and, in fact, re-open discovery on Dr. Hartman’s prescription history, his position on the Vioxx warning, and the possibility of actual bias by Dr. Hartman.  Id. at *26-27.

But this raises a serious question: hadn’t discovery already happened?  Plaintiff has the burden of proof, not Merck.  And, if after nine years of litigation there was no evidence on the extent and regularity of Dr. Hartman’s prescriptions, or whether a different warning would have changed this uncertain prescription history, or actual bias by Dr. Katz, that seems like a reason to end plaintiff’s case, not reopen it.

Anyway, the second basis for Merck’s motion was that plaintiff had at the last minute (of a multi-overtime game) changed her claimed injury to plaque build-up and heart disease from the two heart attacks that she alleged in her complaint.  Id. at *7, 10-11.  In fact, it’s not clear that she had a heart attack at all.  The court’s discussion of her medical history seems to mention no heart attacks.  Id. at *6.  Plaintiff argued that, regardless of what her complaint said, her plaintiff profile form (or, fact sheet, as some of us know them) provided a detailed history of her plaque and heart disease.  But she never changed her allegations.  And, while plaintiff argued that she is “merely providing a more descriptive explanation of her injuries,” plaintiffs’ principal mechanism theory in the Vioxx litigation had always been that Vioxx promoted clotting and resultant heart attacks, something very different from promoting plaque and heart disease.  The court, noting that plaque and heart disease “very closely related to – if not a component of–the initial alleged injury [heart attack],” nonetheless denied Merck’s motion.  But, component or not, it seems to us to be a very different claim to allege that Vioxx caused plaintiffs’ plaque and heart disease rather than a heart attack (that never happened).  In the finely tuned area of scientific study, those are two very distinct endpoints.  Building a defense to one is quite different from building a defense to the other.

There is a ray of hope, though.  Apparently plaintiff’s expert for her new damages theory will be Dr. David Egilman.  We’ve written before on Dr. Egilman’s vast and controversial history as a plaintiffs’ expert. So, once reopened discovery comes to an end, Merck may have fertile grounds on which to attack plaintiff’s causation case with yet another summary judgment motion.

The court itself noted that this case had “already spanned nine years and should be put to rest.”  Id.  That sentiment, it seems to us, screamed for summary judgment here, not more discovery.

Plaintiff had had years’ worth of opportunities to disclose her case and press it through fact and expert discovery. Unfortunately, the MDL court may have been war-weary from an admittedly long and arduous litigation and kicked the can down the road to the transferor court for further proceedings.  But the MDL court did not green-light the case for trial.  That’s good, and it means that this is likely not the last we hear of this case.  Expect a decision on another summary judgment motion in, say, a year.