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Appellate victory for HFM attorneys in pharmaceutical case

Attorneys for Humphrey, Farrington & McClain secured a victory in the Eighth Circuit Court of Appeals when it reversed a lower court’s judgment in favor of the pharmaceutical manufacturer of the drug Vioxx.

The Eighth Circuit’s reversal means that the 12 ½ year-old case against Merck & Company Inc. will be tried in front of a jury in the U.S. District Court for the Western District of Missouri.

And _ in what the attorneys describe as a significant consequence of the ruling _ it crystallizes the law regarding Missouri’s statute of limitations by confirming that the statute of limitations does not begin to run at the time of a diagnosis. Instead, both “the character of the condition and its cause” must be reasonably capable of ascertainment before the statute of limitations is triggered.

The plaintiff, a 75-year-old Kansas City woman, sued Merck & Company in September 2006 after she sustained cardiovascular injuries from using Vioxx to relieve pain and inflammation. Her suit was one of numerous lawsuits against the makers of Vioxx nationwide and was in a Multidistrict Litigation (MDL) court for 10 years until that court remanded it to the U.S. District Court Western District of Missouri in October 2016.

At issue was whether the plaintiff filed her lawsuit within Missouri’s five-year statute of limitations. Merck’s attorneys argued that the plaintiff was time-barred from suing the company in September 2006 because she suffered her cardiovascular injuries in the spring of 2000.

The federal court granted Merck’s Motion for Judgment on the Pleadings and dismissed the plaintiff’s case.

On appeal, which was filed in October 2017, Humphrey, Farrington & McClain attorneys argued that the causal theory linking Vioxx to heart problems was only beginning to emerge in the scientific community before September 2001. In fact, they argued that several key events took place after that date. The plaintiff’s doctors never suspected Vioxx was the cause of her injuries and in fact continued to prescribe it to her. Merck had yet to warn about cardiovascular injuries on Vioxx’s label and did not take it off the market until 2004.

The federal court, though, focused on news reports that the plaintiff had never seen because they were published in New Jersey. And the subject of those news reports, Humphrey, Farrington & McClain attorneys said, were unconfirmed suspicions that Vioxx causes heart disease.

“The existence of articles in New Jersey speculating on a connection between Vioxx and heart problems is insufficient to conclude, as a matter of law, that our client knew or should have known that Merck wrongly injured her,” said Kenneth B. McClain, senior partner with Humphrey, Farrington & McClain.

In their oral arguments to the U.S. Court of Appeals for the Eighth Circuit in September 2018, Humphrey, Farrington & McClain attorneys relied on a 1984 Missouri Supreme Court ruling that held that a plaintiff’s claim did not accrue until “the character of the condition and its cause first ‘came together’ for the plaintiff”.

They also relied on a 2015 case they successfully argued in the Western District for the Missouri Court of Appeals _ Giles v. Carmi Flavor & Fragrance Co. In Giles, Humphrey Farrington & McClain _ again led by Kenneth B. McClain_ also obtained reversal of a trial court’s summary judgment on statute of limitations grounds. There, the plaintiff was not aware that diacetyl caused his lung disease until many years after his exposure to the harmful chemical. The court of appeals ruled that a claim does not accrue until a reasonable person in the plaintiff’s shoes should have become aware of both his condition and its cause.

Humphrey, Farrington & McClain’s success in these two cases is a victory for anyone in Missouri who has been injured but was not immediately aware of the cause. It confirms that they will still be able to seek compensation from those who harmed them unless they acted unreasonably in failing to discover the source of their injury.

“I’m proud of the work we’ve done,” Mr. McClain said. “Nobody should be denied access to the courts because they waited too long when even their own doctors were unaware of the cause of their disease.”

Assisting Mr. McClain on this appeal were Attorneys Daniel A. Thomas, Jonathan M. Soper and Nichelle L. Oxley, all with Humphrey, Farrington & McClain.

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