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Pursuing Merck and Vioxx With A Vengeance - Part 2

Posted by Jane Akre
Friday, January 16, 2009 12:56 AM EST
Category: Major Medical, Protecting Your Family
Tags: Federal Preemption, Merck & Co. Vioxx, FDA and Prescription Drugs, Dangerous Drugs, Diana Levine

Joan Petty took Vioxx for five years and had 3 heart attacks. 

Joan M. Petty and her great grandson

(Continued from PART ONE)


IMAGE SOURCE: © Photo courtesy: Joan M. Petty


Vioxx was developed in a Merck research facility in 1994. It is among a class of drugs called Cox-2 inhibitors, a class of painkillers to reduce pain and inflammation without the side effects of other nonsteroidal anti-inflammatory drugs (NSAIDS), such as ulcers and gastrointestinal bleeding.

Vioxx was approved by the Food and Drug Administration in 1999, but by September 2004, overwhelming results showed Vioxx users had double the risk of heart attack or stroke. Merck voluntarily pulled Vioxx from the worldwide market.  

Then the lawsuits began. Plaintiffs said Merck had known about the possible serious risks years earlier in 2000 and 2001, and even before the drug was approved, but failed to warn doctors and consumers.

Considered a “blockbuster drug”, up to 100 million prescriptions had been written for Vioxx. The pain medication was bringing Merck $2.5 billion a year.

Petty initially filed a product liability case in Ft. Pierce, Florida with the help of an attorney, joining thousands of other plaintiffs in civil actions against Merck. 

When a year passed without any communication from the lawyer, Petty says she decided to represent herself, pro se. 

In 2004, the U.S. Department of Justice began a criminal investigation into Merck’s handling of Vioxx.  Petty then decided to file her own criminal action against Merck.

Private individuals harmed by the action of an enterprise can file a lawsuit under RICO (Racketeer Influenced and Corrupt Organization Act), generally reserved for prosecuting organized crime. In 2007, Petty charged Merck & Co. as a criminal organization. 

In her February 2008 brief to the U.S. Court of Appeals in Louisiana, Petty asked the Constitutional Question:

“Does an individual, grievously harmed by a defective prescription drug, have the legal right to bring criminal charges against the people who have profited from the criminal error of manufacturing a defective prescription drug?”

Petty charged Merck criminally along with the company exedcutives who, she says, “knowingly and willingly did enterprise within an enterprise in a practice and pattern to conspire to fraudulently foust upon the public a killer drug, without reservation.”

“Why did five years and 88,000 deaths, each proven by autopsy to be Vioxx related and another documented 140,000 people claiming grievous harm, go by before Vioxx was recalled in 2004?” she asks.

Merck had argued in another case (Gomez v. Merck),  that plaintiff claims filed in state courts are preempted because the Vioxx label was approved by the FDA.  But the issue of federal preemption and just how far it goes is a muddled area of the law.   

A case currently before the U.S. Supreme Court (Wyeth v. Diana Levine), that will be decided sometime in 2009, challenges the FDA shield the drug industry uses to avoid liability in a failure-to-warn or product liability lawsuit.

Judge Eldon Fallon, the federal judge in New Orleans overseeing Vioxx litigation and eventually a $4.85 billion settlement, dismissed her lawsuit for lack of standing in July 2007.  

By July 2008, Petty appealed back to the federal court arguing she has standing to sue under RICO because her body constituted property that was damaged by the drug Vioxx.

Having had it with Petty’s request for injunctive relief and her request for an emergency hearing, the 5th District Court of Appeals in New Orleans warned her, against any more  “frivolous, harassing, or contumacious conduct,”  and threatened sanctions and penalties.  


A search of court documents, shows six pages of appeals, motions, notices all filed by Petty.  She says someone is ghostwriting a book about her called, “The Iron Lady.”

And she proudly points out that January 16th is the same day that President-elect Barack Obama’s birth certificate issue goes before the U.S. Supreme Court.  

Her Petition for a Writ of Certiorari asks the high court to schedule briefs and oral arguments so the whole court can review the judgment of the lower court in dismissing her lawsuit. 

They are rarely granted.  Justices carefully choose cases they consider sufficiently important. But four of the nine Justices are all that’s required to grant a Writ.  Not surprisingly, Joan Petty is not deterred. 

“I will go forward with every fiber of my damaged being to make the public aware that the protection the public is constitutionally guaranteed is not in place. If enough attention is paid to this vital issue, we will not be left to wonder with every prescribed medication we take if we are playing roulette with our well being, gambling our individual futures to make wealth for the currently unaccountable drug empire,” she says.  # 


Anonymous User
Posted by Henry Smith
Friday, January 16, 2009 5:47 PM EST

You go girl! Good for you Joan. I believe your filing under RICO has merit, and am appalled that the 5th Circuit was permitted to dismiss it. Shouldn't Judge Fallon have been required to recuse himself on your case, since he has an interest in seeing all Vioxx cases remain handled under the current MDL in which all the existing federal civil suits were consolidated under him? Especially since he is acting as Administrator in the "Private Settlement" offered by Merck in these civil cases.

Most people have no idea how many American lives were lost due to this drug. Needlessly and carelessly due to the actions/inactions of Merck.



I believe the current Vioxx Settlement is a travesty to justice, and has corrupted the legal system upon which we victims depend. It has destroyed the trust between attorneys and their clients and, besides guaranteeing a huge payday for the lawyers involved and limiting Merck's exposure, has done very little to compensate a huge number of victim/plaintiffs who have suffered devastating permanent injury and/or death.

Since the announcement of the Settlement, many Vioxx Plaintiffs have been gathering online to discuss the problems/merits of the Settlement.

Many plaintiffs have been given erroneous or misleading/confusing info from their attorneys, and understand precious little regarding the specifics of how the settlement actually works. In many regards, a great number of plaintiffs have been led down the garden path as sheep to slaughter, primarily for the financial gain of their attorneys.




Anonymous User
Posted by Catherine Holston
Friday, January 16, 2009 9:09 PM EST

Go for it with the suit. I have not had a heart attack or stroke however I know I suffer from some of the side effects that Vioxx caused from taking it for three years. I never had a problem with kidneys, heart, breathing till after Vioxx. So go for it and I hope you win.

Anonymous User
Posted by Paul Stiller
Tuesday, January 20, 2009 9:49 PM EST

I am part of the Merck settlement and have heard little from my lawyers in several months.

I also suffered severe COPD and blood sugar issues while taking VIOXX. Those conditions gradually reversed when I stopped taking VIOXX, yet there is little to no information about breathing issues and diabetic symptoms. Does anyone know why??

Anonymous User
Posted by Noreen Tuminski
Tuesday, January 27, 2009 8:56 PM EST

I'm happy to see that you filed a lawsuit under RICCO.Unfortunately,the laws do not work in favor of the little guy, only BIG Corporate America!!! Your money was taken for medication that caused you harm, along with the insurance companies that are entangled with their lies and fully lined pockets. Don't give up, because if you give up, they'll win. Keep fighting!!

Comments for this article are closed.

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