As of September 30, 2006, more than 15,000 individual personal injury lawsuits had been filed in New Jersey against Merck and Company, the manufacturer of Vioxx. In January, 2007, Judge Carol Higbee will preside over a consolidated trial with eight plaintiffs involved from five different states. The court’s present trial plan has three phases:
• Phase One consists of the presentation of evidence concerning the science and uniform marketing materials associated with Vioxx and other communications directed at physicians. The jury can determine whether plaintiffs have rebutted the presumption of adequacy for the FDA label.
• In Phase Two, the jury will hear evidence concerning each of the plaintiffs, their treating physicians, and the Merck sales representative that promoted Vioxx to those physicians. At the conclusion of Phase Two, the jury will determine the adequacy of the warning to each of the plaintiffs prescribing physicians, whether Vioxx was a substantial contributing factor in causing plaintiffs’ injuries, compensatory damages, and whether there was an ascertainable loss of money as a result of consumer fraud.
• Phase Three will be devoted to punitive damages. All of the plaintiffs or their decedents suffered a myocardial infarction while on Vioxx. The amounts of punitive damages to be awarded will be determined in this Phase.
It appears that Judge Higbee has developed a very good plan for the handling of the Vioxx litigation in New Jersey. Hopefully, the cases there will be tried successfully under her plan.
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