LOUISIANA RECORD

U.S. District Judge Eldon Fallon has scheduled a lawsuit brought by Louisiana Attorney General Buddy Caldwell against Merck to begin April 12 in New Orleans federal court.

Caldwell is suing the drug company over its recalled arthritis pain medicine Vioxx.

After a recent ruling denying part of Merck's motion for summary judgment, Fallon is allowing Caldwell to proceed with a third party claim that Merck misrepresented and improperly marketed the drug in July 2005. The lawsuit asserts claims for redhibition, violations of the Louisiana Unfair Trade Practices Act, violations of the New Jersey Consumer Fraud Act, and unjust enrichment.

Under Louisiana law, a seller warrants the buyer against redhibitory defects in any sold product. A product has redhibitory defect when it is rendered entirely useless to such an extent that a buyer would not have bought the product had the defects been known or would have only purchased the product at a lesser price.

Merck withdrew Vioxx from the market in September 2004, after a long-term clinical trial showed that the drug increased the risk of cardiovascular thrombotic events such as heart attacks and strokes.

Caldwell's lawsuit claims that if the full extent of the risks of Vioxx were known, then fewer prescriptions would have been filled because fewer doctors would have prescribed and fewer consumers would have taken the drug or because Louisiana would have removed the drug from the preferred the drug list.

Merck filed a motion for summary judgment asserting that all the claims fail because Louisiana was not a buyer of the drug. On March 31, Fallon issued on mixed ruling on the motion.

Fallon dismissed the state's claims of violations of the Louisiana Unfair Trade Practices Act, violations of the New Jersey Consumer Fraud Act, and unjust enrichment but is allowing the redhibitory claims.

Fallon agreed with the state that it was a buyer of Vioxx and should be allowed to seek damages for the full value of the drug that the state paid.

MDL No. 1657