Tuesday, June 07, 2005

Oregon law limits suit versus Drug Makers

From the Register Guard:

Oregonians can't file suit versus Merck because of a unique-to-Oregon statute of limitations barring such lawsuits. (Oregon has a two years from the date of injury statute, as opposed to a discovery rule.)

That's prompted Oregonians who have suffered strokes or heart attacks after they used Vioxx to urge legislators to change the restrictive law.

It's also prompted fierce lobbying by the well-heeled drug industry to keep in place the bar against such liability lawsuits in Oregon.

The drug, used by more than 25 million Americans from 1999 to 2004, was withdrawn by its manufacturer, New Jersey-based Merck & Co. Inc., last September after a well-publicized clinical trial linked it to increased risk of heart attacks and strokes.

Among those seeking a change in state law is Peggy Duckworth, a Eugene plant nursery owner whose husband, Paul, died of a stroke-related aneurysm in 2002, after taking Vioxx for his arthritis. He was 57.

In 2002, Merck was aware of drug-safety studies and scientists' concerns that Vioxx may be unsafe, according to news reports published after the 2004 recall.

Because of the drug company's suppression of this information, Duckworth said, her husband kept using up a drug that may have killed him.

And because of the gap of more than two years between her late husband's stroke and her discovery of the possible connection between the stroke and Vioxx, Duckworth cannot bring a product-liability suit in Oregon courts against Merck; for people harmed before 2004, Oregon law requires that such lawsuits be brought within two years of the injury itself - not the point at which its cause is discovered.

Duckworth said she's not sure if she would sue Merck. But she thinks she should have that legal right, as she would in other states.

"I'm at the point where, if they knew it and hid it, they should be punished. But I don't even have the choice right now," she said.

A bill slated for a vote in the Senate on Tuesday would give that right to Duckworth and hundreds of others who think they were injured or lost a family member to Vioxx or other "Cox-2 inhibitor" drugs such as Bextra. New York-based Pfizer Inc. has withdrawn Bextra from the market.

Senate Bill 1011 would allow such suits for pre-2004 injuries to be filed within two years of the discovery of harm - three years if the harm was fatal - the same standards in place for Oregon product-liability cases from 2004 and forward.

But advocates for the change are finding it harder than they had expected to win the Democratic-controlled Senate's approval. With most Republicans and a handful of Democrats opposed and a few others wavering, backers say it's too close to know whether they can pass their bill.

The bill first passed out of committee a month ago, but the delay in getting it passed on the floor provided time for the more than two-dozen drug-industry lobbyists in Salem to convince lawmakers that the bill should be shelved, SB 1011 supporters contend.

"It's the powerful drug lobby locking up a good bill," said Sen. Charlie Ringo, a Beaverton Democrat who is slated to carry the bill during the upcoming floor debate.

The pharmaceutical and health products sector is a major financial player in Oregon politics. Last year, it contributed $297,671 to Oregon candidates, according to the Institute on Money in State Politics, a nonpartisan group that monitors campaign donations nationwide.

Oregon's top drug-industry lobbyist, Pharmaceutical Research and Manufacturers of America representative Jim Gardner, declined to be interviewed for this article, referring media questions to a Washington, D.C.-based public-relations official, Wanda Mobius.

Mobius said the industry was making the case to legislators that it would be unfair to retroactively change the rules for a narrowly defined group of potential litigants.

"We have serious concerns with the idea of changing the statute of limitations and the rules about how litigation can proceed after the fact," she said.

Brad Higbee, a lobbyist for the group formed to push SB 1011, Vioxx Victims United, has had the advantage of letting former users of the painkiller and their survivors tell their own emotionally compelling stories during public hearings.

But when it comes to the day-to-day lobbying for legislators' votes, Higbee said, he and the four Oregon Trial Lawyers Association lobbyists supporting the legislation have been outmatched by the drug industry.

"There's a phalanx of drug lobbyists. They follow you when you're talking to a legislator, and when you're done, they have a follow-up conversation" with the same legislator, he said.

For Eugene resident Jon Moulton, an Oregon State University professor who calls himself an "extreme novice" on political matters, the bill's woes in the Senate have been puzzling, given that the chamber's majority Democrats were thought to be more apt to side with consumers than with manu- facturers.

Moulton was taking Vioxx for pain caused by an auto accident when he suffered a heart attack at age 37. Because the heart attack occurred in 1999 but he did not discover the link between heart attacks and Vioxx until last September, he cannot sue.

Moulton has traveled to Salem with other SB 1011 backers on all five occasions that it's been scheduled for a floor vote, only to see action delayed - either because there weren't enough senators present to provide a majority vote or because of a technical problem that led to the bill's referral back to committee for an amendment. He said he'll be back in Salem on Tuesday for its next go-round.

"I understand why it hasn't been voted on, but it is a little disturbing," he said.

"I think this should be very much a nonpartisan issue. This is an issue of fairness, fairness to go into court and have our day.

The article can be found here.