Products Liability Law Reporter

The Eighth Circuit Court of Appeals held that whether a reasonably prudent person would have been put on notice of a potentially actionable injury related to Vioxx was a material fact issue that precluded judgment on the pleadings for a defendant drug manufacturer.

Here, Jo Levitt began taking Vioxx in 1999 and suffered cardiovascular injuries the following year. She continued taking the medication until 2002, the year Merck & Co. changed its label to disclose a risk of cardiovascular injuries associated with using Vioxx. In September 2006, Levitt sued Merck. The defendant moved for judgment on the pleadings on the basis that the plaintiff failed to comply with the applicable five-year limitations statute. The trial court granted the motion.

Reversing, the Eighth Circuit found that in Missouri, the five-year limitations period begins to run after a cause of action has accrued, specifically when the alleged damage is sustained and is capable of ascertainment. Citing case law, the court added that the term capable of ascertainment means where there is evidence to place a reasonably prudent person on notice of a potentially actionable injury. Here, the court said, different conclusions may be drawn as to whether the evidence was such as to place a reasonably prudent person on notice of a potentially actionable injury from Vioxx before September 2001. The causal link between Vioxx and heart problems was beginning to emerge before September 2001, the court found, adding that Merck’s public statements at the time asserted that no sound conclusions could be drawn from the available Vioxx cardiovascular studies. The court predicted that the Missouri high court would likely conclude that mere knowledge in the medical community of such a possible link does not place a reasonably prudent person on notice as a matter of law.

Accordingly, the court concluded that because the defendant failed to clearly establish a lack of material fact issues on whether the limitations period had run, judgment on the pleadings had been improper.

Citation: Levitt v. Merck & Co., 2019 WL 418018 (8th Cir. Feb. 4, 2019).

Plaintiff counsel: AAJ member Kenneth B. McClain, Nichelle L. Oxley, AAJ member Jonathan M. Soper, and AAJ member Daniel A. Thomas, all of Independence, Mo.