United States District Court, E.D. Louisiana
KNOWLES MAG. JUDGE
ORDER & REASONS
the Court is Plaintiff Levitt's Motion Pursuant to the
All Writs Act asking this Court to compel the Western
District of Missouri to vacate and set aside its order of
dismissal. R. Doc. 65524. Merck opposes the motion. R. Doc.
65528. Levitt timely replied. R. Doc. 65533.
Court has reviewed the parties' briefs and applicable
law, and having heard oral argument on the motion, now issues
this Order & Reasons.
this matter in perspective, a brief review of this
multidistrict litigation ("MDL") is appropriate.
This litigation involves products liability claims pertaining
to 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. Vioxx remained publicly available until September 30,
2004, when Merck withdrew it from the market after data from
a clinical trial known as APPROVe indicated that the use of
Vioxx increased the risk of cardiovascular thrombotic events
such as myocardial infarction (that is, heart attack) and
ischemic stroke. Thereafter, thousands of individual suits
and numerous class actions were filed against Merck in state
and federal courts throughout the country alleging various
products liability, tort, fraud, and warranty claims. On
February 16, 2005, this litigation was declared an MDL and
transferred to this Court pursuant to 46 U.S.C. § 1407.
September 29, 2006, Jo Levitt brought this action against
Merck in the United States District Court for the Western
District of Missouri. In her complaint, she alleges that she
suffered two heart attacks in 2001 as a result of taking
Vioxx and seeks compensatory and punitive damages, as well as
interest, costs, attorneys' fees and any other available
relief. On November 8, 2006, the matter was transferred to
this Court for inclusion in the Vioxx MDL.
six “bellwether” trials in this proceeding-as
well as trials in other proceedings in Alabama, California,
Illinois, Florida, New Jersey, and Texas-the negotiating
plaintiffs' counsel ("NPC") and Merck's
counsel engaged in protracted settlement discussions over the
course of a year, conducting hundreds of in-person and
telephone meetings. On November 9, 2007, the parties
announced a $4.85 billion master settlement agreement
("MSA") that intended to-and actually did-resolve
most Vioxx-related claims through a resolution program. In
its recitals, the MSA expressly states that its purpose was
to “establish a pre-funded, structured private
settlement program . . . to resolve . . . claims against
Merck involving heart attacks, ischemic strokes and sudden
cardiac deaths.” This was an “opt-in”
program, meaning an interested claimant had to take
affirmative steps to enroll in it. Ms. Levitt chose not to
enroll, and instead proceeded to litigate her claim. This
Court retained jurisdiction for the discovery phase of this
relation to Ms. Levitt's case, the parties filed various
pretrial motions, including Daubert and Summary
Judgment motions. The Court reviewed the parties'
motions, heard oral argument, and issued rulings on these
motions. On September 23, 2017, the Court wrote to the MDL
panel and explained that at this point in the litigation, Ms.
Levitt's case was the only individual case remaining in
the MDL. All the discovery in this individual matter had been
completed, and the Court issued substantive rulings on
various pretrial matters. Accordingly, the Court recommended
the case should be transferred back to the transferor court
in Missouri for further proceedings, including trial. On
October 14, 2016, the MDL Panel issued a conditional remand
order remanding this individual case to the Western District
of Missouri. R. Doc. 65476.
the case arrived back in the Western District of Missouri,
the court set it for trial in 2017. Before trial, Defendant
filed a motion for a judgment on the pleadings under Missouri
law. The Court applied Missouri law and dismissed the case.
In particular, the Court found that as a matter of fact
causation was ascertainable five years before the case was
filed and dismissed the claim as it was filed outside the
statute of limitations.
has filed a motion under the All Writs Act asking this Court
to compel the Western District of Missouri to vacate and set
aside its order of dismissal. R. Doc. 65524. Merck opposes
the motion. R. Doc. 65528. Levitt timely replied. R. Doc.
Plaintiff's Motion Pursuant to the All Writs Ace to
Compel the Western District of Missouri to Vacate and Set