8th Circuit rules suit against Merck over alleged Vioxx injuries is not time barred

By Charmaine Little | Feb 15, 2019

ST. LOUIS – The U.S. District Court of Appeals for the 8th Circuit determined a personal injury lawsuit against a medication manufacturer is indeed timely on Feb. 4.

Disagreeing with the U.S. District Court for the Western District of Missouri in Kansas City, the Appeals Court reversed the ruling that granted defendant Merck & Co. Inc.'s motion for judgment amid Jo Levitt’s case against it. Levitt sued Merck after her physician prescribed her one of its products, Vioxx, in 1999, and alleged it caused her cardiovascular injuries.

“We conclude that there remains such ‘a question of fact for the jury to  decide’ because ‘contradictory or different conclusions may be drawn’ as to whether ‘the evidence was such a place a reasonably prudent person on notice of a potentially actionable injury’ before September 2001,” Circuit Judge Raymond Gruender wrote.

She sued in September 2006, two years after Vioxx was taken off the market and four years after Merck changed the label to warn users of cardiovascular risks in 2002. Merck argued that the lawsuit was time-barred because of Missouri’s five-year statute of limitations and filed a motion for judgment. The lower court granted Merck’s motion for judgment and pointed out that since her claims “accrued” before September 2001, filing a suit in late September 2006 was not timely. Levitt appealed, and the Appeals Court reversed.

The ruling added that the dangers of taking Vioxx were reported on before Levitt filed her lawsuit and cited national news coverage on the potential heart risks of taking the medicine that dates back to 2000. The company also faced lawsuits prior to September 2001 over allegations Vioxx caused heart problems.

“Such publicly available information is relevant to whether ‘notice of a potentially actionable injury’ existed,” Gruender wrote.

Still, Gruender wrote it not considered a matter of law. Considering this, since Merck failed to establish there are no material issues of fact paired with the notion that the Appeals Court did not require Levitt to provide definitive causation, the court reversed and remanded the district court’s dismissal of the case for further proceedings.

Circuit Judge Steven M. Colloton dissented and said he believed the lower court applied Missouri law correctly and would affirm its ruling. Colloton added that Levitt was on inquiry notice in September 2001 but didn’t file the lawsuit until five years later after the statute of limitations had expired.

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