NJ Supreme Court To Hear Vioxx Preemption
5 CommentsBy Ed Silverman // October 13th, 2008 // 11:11 am
In a ruling that reflects ongoing tension between federal and states rights in product liability cases, the court agreed to hear Merck’s argument that FDA approval of its notorious painkiller should preclude such lawsuits in New Jersey courts.
The certification is an outgrowth of an appeal Merck filed after a split decision by the state’s appeals court last spring, which tossed $9 million in punitive damages and ruled there was no violation of New Jersey’s Consumer Fraud Act, but upheld $4.5 million in compensatory damages, plus interest. At the time, the appeals court ruled there was no preemption of the state’s Product Liability Act.
In its appeal, Merck had argued the McDarby case warranted reversal, because Superior Court Judge Carol Higbee shouldn’t have let jurors second-guess the FDA’s approval of a label that didn’t warn of heart attack risks (back story). Now, the issue will be revisited, although a hearing date was not set. Meanwhile, the US Supreme Court will examine preemption on November 3 (read here).
Merck, however, failed to convince the court about a few significant points needed to overturn the compensatory damages - that John McDarby’s doctor would not have prescribed Vioxx if he had received a warning about cardiovascular risks, a reference to what’s known as a heeding presumption; that under state law, FDA approval and labeling language was an adequate warning; and that other medical risk factors contributed to the heart attack suffered by the retired insurance agent. Here is the NJ Supreme Court certification.
Justice in MI
Onward!
I’m assuming that the NJ SC will revisit whole case as opposed to just the punitive damages issue. The latter is the issue that Kent was about - whether a state court can assess fraud on FDA. I couldn’t tell from the link which it was.
Justice in MI
As I go back to links, it looks like Merck is challenging compensatory damages, so the whole case. This is a much better case in which to hash out preemption than Levine. Whatever the NJSC decides, I hope it gets to SCOTUS. But that will probably depend on who is Solcitor General at the time, which will, in turn, depend on who is President.
VICTIM@ 47,987
THE BS SETTLEMENT SHOULD BE REDONE CORRECTLY…PEOPLE ARE GETTING DINGED FOR RISKS THEY HAD WHEN IT WAS PRESCRIBED…FACE IT,MERCK SCREWED UP AND NEEDS TO PAY THE PEOPLE THEY HARMED..THEY ARE GETTING AWAY WITH MURDER AS IT IS.
SETTLEMENT SHOULD BE 20 BILLION WITH NO PENALTIES..
AS IT STANDS NOW THEY ARE PENALIZING PEOPLE THAT STARTED TAKING MEDS THAT THEY WHERE PUT ON AFTER THEIR HEART ATTACK JUST BECAUSE THE DOCTORS ALWAYS PUT PEOPLE ON THEM AS A PRECAUTION…
THE PSC THAT CAME UP WITH THIS JOKE OF A SETTLEMENT HAD ONLY THIER BEST INTREST IN MIND, THE THE VICTIMS!!!!!
MERCK AND THE PSC SHOULD BE HUNG!
Keith Hardesty
Congressman Dr. Tom Coburn prescribed my vioxx in massive dosages 2-4 25mg tablets daily, as a general pain anesthetic. He totally misdiagnoised side effects, consults with Merck Pharmacoligist failed to inform him of these effects. Many of his terminally ill patients may not have expired as a result of their known diagnosis!! He also denied to help many “Faith Base Initative” patients SSI help in lew of a prayer and poison pill! We have letters on U. S. House of Representative stationary to say, “…my constitiency will not allow my assistance in your S.S.I. application”., or “appeal”, as the case was for many of us on “death row”…His clinic’s waiting room.
Keith Hardesty
Yes, I survived despite many strokes, and cardiac arrests! Living with the damage, to tell the true story of Vioxx’s harmful effects! There is just two questions for Merck and “Public Trust” to answer:
Are lives worth the deceptive practices for profit? How many lives are too many?