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In re Vioxx Products Liability Litigation

United States District Court, E.D. Louisiana

June 23, 2017

IN RE VIOXX PRODUCTS LIABILITY LITIGATION
v.
Merck Sharp & Dohme Corp., 06-9757 THIS DOCUMENT RELATES TO: Jo Levitt

         SECTION L

          KNOWLES MAG. JUDGE

          ORDER & REASONS

          FALLON JUDGE

         Before 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.

         The Court has reviewed the parties' briefs and applicable law, and having heard oral argument on the motion, now issues this Order & Reasons.

         I. BACKGROUND

         To put 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.

         On 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.

         Following 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 case.

         In 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.

         When 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.

         II. PRESENT MOTION

         Levitt 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. 65533.

         A. Plaintiff's Motion Pursuant to the All Writs Ace to Compel the Western District of Missouri to Vacate and Set ...


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