Pursuing Merck and Vioxx With A Vengeance - Part 2

Joan M. Petty and her great grandson

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 5^th District Court of Appeals in New Orleans warned her, against any more  “frivolous, harassing, or contumacious conduct,”  and threatened sanctions and penalties.  

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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 16^th 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.  #