Texas Vioxx Judge Plans to Dismiss Failure-To-Warn Claim

According to this article in the Houston Chronicle -- Judge Casts Doubt on Vioxx Point -- Texas judge Randy Wilson plans to dismiss Ruby Ledbetter's failure to warn claim against Merck, while allowing her to proceed on other claims such as negligence and product defect.  Judge Wilson has all of the Texas state court Vioxx cases, so the ruling has broad implications:

If a Harris County judge is right, a 2003 Texas law could not only gut the nearly 900 Vioxx cases pending in this state, but it could raise the bar for pharmaceutical cases of any kind here.

State District Judge Randy Wilson, who oversees all state Vioxx claims, told lawyers in the case of Ruby Ledbetter versus Merck & Co. that he plans to issue an order later this week to dismiss a part of her case. She was due to go to trial in May and be the next jury test of a user of the painkiller claiming it caused serious side effects that they weren't warned about — in her case a heart attack.

Her lawyer, Tommy Fibich, said the judge plans to put all the state Vioxx cases in limbo until he hears from the appellate courts about whether Texas law might keep the Vioxx users from claiming they weren't fairly warned. According to the court Web site, there are 888 Vioxx cases pending before Wilson.

Even if she loses on the issue of whether she was fairly warned of side effects, Ledbetter could still go to trial on other potentially harder to prove complaints — like that the company was negligent or the drug was defectively designed.

But the fair warning question is the one lawyers know resonates with juries.

The anticipated dismissal would be based on a 2003 Texas tort reform statute that creates a presumption of adequate warnings based on FDA approval.  Although most of the nation's Vioxx cases are pending in New Jersey state court and in the federal MDL in New Orleans, Texas has played a significant role as well, with hundreds of pending claims and two of the most significant plaintiffs' victories to date.

HME