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IN THE UNITED STATES DISTRICT COURT 

MIDDLE DISTRICT OF ALABAMA 

SOUTHERN DIVISION 

 

RUTH WILLIAMS, * 

 * 

 Plaintiffs, * 

 * 

v. * Civil Action No.: 1:06cv637-MHT 

 * 

MERCK & CO., INC., * 

 * 

 Defendant. * 

ANSWER AND JURY DEMAND OF DEFENDANT MERCK & CO., INC.

COMES NOW, Defendant Merck & Co., Inc. (“Merck”), by and through its 

undersigned attorneys, and hereby answers the Complaint (“Complaint”) as follows: 

Response to “Statement of the Parties”

1. Merck denies knowledge or information sufficient to form a belief as to the 

truth or falsity of the information contained in this paragraph of the Complaint. 

2. Merck denies each and every allegation contained in this paragraph of the 

Complaint except that it admits it is a New Jersey corporation with its principal place of 

business in New Jersey and that it manufactured, marketed and distributed the 

prescription medicine Vioxx until Merck voluntarily withdrew Vioxx from the worldwide 

market on September 30, 2004, and that Vioxx is the trade name for rofecoxib. 

Response to “Factual Allegations”

3. Merck denies each and every allegation contained in this paragraph of the 

Complaint and avers that Merck sought and received the approval of the United States 

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Food and Drug Administration (“FDA”) to manufacture and market the prescription 

medicine Vioxx and, until the voluntary withdrawal of Vioxx on September 30, 2004, did 

market Vioxx for the indicated uses set out in the relevant FDA-approved prescribing 

information. Merck respectfully refers the Court to the FDA-approved prescribing 

information for Vioxx’s indicated uses. Merck admits that Vioxx is a selective COX-2 

inhibitor and that the mechanism of action of Vioxx is believed to be due to inhibition of 

prostaglandin synthesis via inhibition of an enzyme known as cyclooxygenase 2 (COX2). 

4. Merck denies each and every allegation contained in this paragraph of the 

Complaint except that it admits that it marketed and distributed the prescription 

medicine Vioxx until Merck voluntarily withdrew Vioxx from the worldwide market on 

September 30, 2004. 

5. Merck denies each and every allegation contained in this paragraph of the 

Complaint, except admits that Merck marketed the prescription medication Vioxx, which 

was approved by the FDA as safe and effective for certain indicated uses in a manner 

consistent with the information contained in the relevant FDA-approved prescribing 

information, and respectfully refers the Court to the relevant FDA-approved prescribing 

information for Vioxx for its indicated uses and full text. 

6. Merck denies each and every allegation contained in this paragraph of the 

Complaint. 

7. Merck denies each and every allegation contained in this paragraph of the 

Complaint. 

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8. Merck denies each and every allegation contained in this paragraph of the 

Complaint. 

9. Merck denies each and every allegation contained in this paragraph of the 

Complaint. 

10. Merck denies each and every allegation contained in this paragraph of the 

Complaint. 

11. Merck denies each and every allegation contained in this paragraph of the 

Complaint, except admits that plaintiff purports to seek exemplary damages, but denies 

there is any legal or factual basis to award same. 

Responses to Count I “Negligence”

12. Merck realleges, adopts and incorporates each prior averment as if set forth 

fully herein. 

13. Merck denies each and every allegation contained in this paragraph of the 

Complaint. 

14. The allegations contained in this paragraph of the complaint are legal 

conclusions as to which no responsive pleading is required. Should a response be 

deemed required, Merck denies each and every allegation contained in this paragraph 

of the Complaint, and respectfully refers the Court to the relevant legal standard, 

including any conflict of laws rules. 

15. Merck denies each and every allegation contained in this paragraph of the 

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Complaint, including subparts a-i. 

16. Merck denies each and every allegation contained in this paragraph of the 

Complaint. 

17. Merck denies each and every allegation contained in the first sentence of 

this paragraph of the Complaint. The allegation contained in the second sentence of 

this paragraph of the complaint is a legal conclusion to which no responsive pleading is 

required. Should a response be deemed required, Merck denies each and every 

allegation contained in the second sentence of this paragraph of the Complaint, and 

respectfully refers the Court to the relevant legal standard, including applicable conflict 

of laws rules. 

Response to Count II “Negligent Failure to Warn”

18. Merck realleges, adopts and incorporates each prior averment as if set forth 

fully herein. 

19. Merck denies each and every allegation contained in this paragraph of the 

Complaint. 

20. Merck denies each and every allegation contained in this paragraph of the 

Complaint. 

21. Merck denies each and every allegation contained in this paragraph of the 

Complaint. 

22. Merck denies each and every allegation contained in this paragraph of the 

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Complaint, including subparts a-c. 

Response to Count III “Misrepresentation and Suppression”

23. Merck realleges, adopts and incorporates each prior averment as if set forth 

fully herein. 

24. Merck denies each and every allegation contained in this paragraph of the 

Complaint. 

25. Merck denies each and every allegation directed toward Merck contained in 

this paragraph of the Complaint, including subparts a-e. 

26. Merck denies each and every allegation contained in this paragraph of the 

Complaint. 

27. Merck denies each and every allegation contained in this paragraph of the 

Complaint. 

28. Merck denies each and every allegation contained in this paragraph of the 

Complaint. 

29. Merck denies each and every allegation contained in this paragraph of the 

Complaint. 

30. The allegations contained in this paragraph of the complaint are legal 

conclusions as to which no responsive pleading is required. Should a response be 

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deemed required, Merck denies each and every allegation in this paragraph of the 

Complaint, and respectfully refers the Court to the relevant legal standard, including 

applicable conflict of laws rules. 

31. The allegations contained in this paragraph of the complaint are legal 

conclusions as to which no responsive pleading is required. Should a response be 

deemed required, Merck denies each and every allegation contained in this paragraph 

of the Complaint. 

32. Merck denies each and every allegation contained in this paragraph of the 

Complaint. 

33. Merck denies each and every allegation contained in this paragraph of the 

Complaint. 

Response to Count IV “Breach of Warranty”

34. Merck realleges, adopts and incorporates each prior averment as if set 

forth fully herein. 

35. Merck denies each and every allegation contained in this paragraph of the 

Complaint. 

36. Merck denies each and every allegation contained in this paragraph of the 

Complaint. 

37. Merck denies each and every allegation contained in this paragraph of the 

Complaint. 

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38. Merck denies each and every allegation contained in this paragraph of the 

Complaint. 

39. Merck denies each and every allegation contained in this paragraph of the 

Complaint. 

Response to Count V “Breach of Express Warranty”

40. Merck realleges, adopts and incorporates each prior averment as if set forth 

fully herein. 

41. Merck denies each and every allegation directed toward Merck contained in 

this paragraph of the Complaint, and respectfully refers the Court to the relevant FDAapproved prescribing information for Vioxx for its actual language and full text. 

42. Merck denies each and every allegation contained in this paragraph of the 

Complaint. 

43. Merck denies each and every allegation contained in this paragraph of the 

Complaint. 

Response to Count VI “Fraud”

44. Merck realleges, adopts and incorporates each prior averment as if set 

forth fully herein. 

45. Merck denies each and every allegation contained in this paragraph of the 

Complaint. 

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46. Merck denies each and every allegation contained in this paragraph of the 

Complaint. 

47. Merck denies each and every allegation contained in this paragraph of the 

Complaint. 

Response to Count VII

“Alabama Extended Manufacturer’s Liability Doctrine”

48. Merck realleges, adopts and incorporates each prior averment as if set forth 

fully herein. 

49. Merck denies each and every allegation contained in this paragraph of the 

Complaint, except admits that Merck manufactured, marketed and distributed Vioxx in a 

manner consistent with the relevant FDA-approved prescribing information until Merck 

voluntarily withdrew Vioxx from the worldwide market on September 30, 2004. 

50. Merck denies each and every allegation contained in this paragraph of the 

Complaint. 

51. For response to Plaintiff’s “Demand for Relief,” Merck denies that Plaintiff 

sustained, or is entitled to, compensatory or punitive damages, or other recovery, fees, 

costs, expenses, or other relief. 

AS FOR A FIRST

DEFENSE, MERCK ALLEGES:

The claims of Plaintiff may be time-barred, in whole or in part, under applicable 

statutes of limitations, statutes of repose, or are otherwise untimely. 

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AS FOR A SECOND

DEFENSE, MERCK ALLEGES:

 The Complaint fails to state a claim upon which relief can be granted. 

AS FOR A THIRD

DEFENSE, MERCK ALLEGES:

 The claims of the Plaintiff may be barred, in whole or in part, from recovery 

because he has made statements or taken actions that preclude him from asserting 

claims or constitute a waiver of their claims. 

AS FOR A FOURTH

DEFENSE, MERCK ALLEGES:

 The claims of the Plaintiff may be barred, in whole or in part, from recovery 

because of the res judicata effect of prior judgments. 

AS FOR A FIFTH

DEFENSE, MERCK ALLEGES:

 Each and every claim asserted or raised in the Complaint is barred by the 

doctrines of estoppel, waiver or statutory and regulatory compliance. 

AS FOR A SIXTH

DEFENSE, MERCK ALLEGES:

 If Plaintiff has sustained injuries or losses as alleged in the Complaint, upon 

information and belief, such injuries or losses were cause in whole or in part through the 

operation of nature or other intervening cause or causes. 

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AS FOR A SEVENTH 

DEFENSE, MERCK ALLEGES:

 To the extent that Plaintiff assert claims based on Merck’s adherence to and 

compliance with applicable federal laws, regulations and rules, such claims are 

preempted by federal law under the Supremacy Clause of the United States 

Constitution.

AS FOR AN EIGHTH

DEFENSE, MERCK ALLEGES:

 To the extent that Plaintiff asserts claims based upon an alleged failure by Merck 

to warn Plaintiff directly of alleged dangers associated with the use of Vioxx, such 

claims are barred under the learned intermediary doctrine because Merck has 

discharged its duty to warn in its warnings to the prescribing physician(s). 

AS FOR A NINTH

DEFENSE, MERCK ALLEGES:

 If Plaintiff has sustained injuries or losses as alleged in the Complaint, such 

injuries or losses were only so sustained after Plaintiff knowingly, voluntarily, and 

willfully assumed the risk of any injury as the result of the consumption of, 

administration of, or exposure to any drug or pharmaceutical preparation manufactured 

or distributed by Merck or other manufacturer. 

AS FOR A TENTH

DEFENSE, MERCK ALLEGES:

 If Plaintiff has sustained injuries or losses as alleged in the Complaint, upon 

information and belief, such injuries and losses were caused by the actions of persons 

not having real or apparent authority to take said actions on behalf of Merck and over 

whom Merck had no control and for whom Merck may not be held accountable. 

AS FOR AN ELEVENTH 

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DEFENSE, MERCK ALLEGES:

 If Plaintiff has sustained injuries or losses as alleged in the Complaint, upon 

information and belief, such injuries and losses were proximately caused by Plaintiff’s 

misuse or abuse of Vioxx. 

AS FOR A TWELFTH

DEFENSE, MERCK ALLEGES:

 If Plaintiff has sustained injuries or losses as alleged in the Complaint, such 

injuries or losses resulted from Plaintiff’s pre-existing and/or unrelated medical, genetic 

and/or environmental conditions, diseases, or illnesses, subsequent medical conditions 

or natural courses of conditions for which this defendant is not responsible. 

AS FOR A THIRTEENTH 

DEFENSE, MERCK ALLEGES:

 To the extent Plaintiff has settled or will in the future settle with any person or 

entity with respect to the injuries asserted in the Complaint, Merck’s liability, if any, 

should be reduced accordingly. 

AS FOR A FOURTEENTH 

DEFENSE, MERCK ALLEGES:

 To the extent Plaintiff is seeking recovery for benefits entitled to be received or 

actually received from any other source for injuries alleged in the Complaint, such 

benefits are not recoverable in this action. 

AS FOR A FIFTEENTH

DEFENSE, MERCK ALLEGES:

 Plaintiff’s claims of fraud are barred by reason of Plaintiff’s failure to allege the 

circumstances constituting fraud with particularity, as required by the Federal Rule of 

Civil Procedure 9(b). 

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AS FOR A SIXTEENTH 

DEFENSE, MERCK ALLEGES:

 Plaintiff’s claims are barred, in whole or in part, under the applicable state law 

because Vioxx was subject to and received pre-market approval by the Food and Drug 

Administration under 52 Stat. 1040, 21 U.S.C. § 301. 

AS FOR A SEVENTEENTH 

DEFENSE, MERCK ALLEGES:

 Plaintiff’s claims are barred in whole or in part by the First Amendment. 

AS FOR AN EIGHTEENTH 

DEFENSE, MERCK ALLEGES:

 Plaintiff’s claims are barred in whole or in part because the product at issue was 

made in accordance with the state of the art at the time it was manufactured. 

AS FOR A NINETEENTH 

DEFENSE, MERCK ALLEGES:

 There is no practical or technically feasible alternative design that would have 

reduced the alleged risk without substantially impairing the reasonably anticipated and 

intended function of Vioxx. 

AS FOR A TWENTIETH

DEFENSE, MERCK ALLEGES:

 This case is more appropriately brought in a different venue. 

AS FOR A TWENTY-FIRST 

DEFENSE, MERCK ALLEGES:

 Venue in this case is improper. 

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AS FOR A TWENTY-SECOND 

DEFENSE, MERCK ALLEGES:

 The claims of Plaintiff may be barred, in whole or in part, from recovery because, 

in this or other courts, he has brought actions and have received judgments on parts of 

some or all claims asserted herein. 

AS FOR A TWENTY-THIRD 

DEFENSE, MERCK ALLEGES:

 The claims of Plaintiff may be barred, in whole or in part, from recovery, on the 

ground that the claims asserted herein have been or should be submitted to arbitration. 

AS FOR A TWENTY-FOURTH 

DEFENSE, MERCK ALLEGES:

The claims of Plaintiff may be barred, in whole or in part, from recovery by release 

as to the claims. 

AS FOR A TWENTY-FIFTH 

DEFENSE, MERCK ALLEGES:

 The claims of Plaintiff may be barred, in whole and in part, by the doctrine of 

laches. 

AS FOR A TWENTY-SIXTH 

DEFENSE, MERCK ALLEGES:

The claims of Plaintiff are barred, in whole or in part, by his failure to mitigate 

damages. 

AS FOR A TWENTY-SEVENTH 

DEFENSE, MERCK ALLEGES:

To the extent there were any risks associated with the use of the product which is 

the subject matter of this action that Merck knew or should have known and which gave 

rise to a duty to warn, Merck at all times discharged such duty through appropriate and 

adequate warnings in accordance with federal and governing state laws. 

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AS FOR A TWENTY-EIGHTH 

DEFENSE, MERCK ALLEGES:

The claims of Plaintiff may be barred, in whole or in part, from recovery, due to 

spoliation of evidence. 

AS FOR A TWENTY-NINTH 

DEFENSE, MERCK ALLEGES:

The claims of Plaintiff may be barred, in whole or in part, by the governing state 

laws. 

AS FOR A THIRTIETH

DEFENSE, MERCK ALLEGES:

Any conduct allegedly causing liability on the part of Merck is not a substantial cause 

or factor of any potential or actual injury or damage, if any. 

AS FOR A THIRTY-FIRST 

DEFENSE, MERCK ALLEGES:

 Plaintiff has not sustained any injury or damages compensable at law. 

AS FOR A THIRD-SECOND 

DEFENSE, MERCK ALLEGES:

 Merck reserves its right to dismiss the Complaint and seek further relief for 

Plaintiff’s failure to provide it with due process of law. 

AS FOR A THIRTY-THIRD 

DEFENSE, MERCK ALLEGES:

To the extent that Plaintiff seeks punitive damages for the conduct which allegedly 

caused injuries asserted in the Complaint, such an award would also, if granted, violate 

Merck’s state and federal constitutional rights. 

AS FOR A THIRTY-FOURTH 

DEFENSE, MERCK ALLEGES:

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 To the extent that Plaintiff seeks punitive damages for an alleged act or omission 

of Merck, no act or omission was malicious, willful, wanton, reckless, or grossly 

negligent and, therefore, any award of punitive damages is barred. 

AS FOR A THIRTY-FIFTH 

DEFENSE, MERCK ALLEGES:

Plaintiff’s demand for punitive damages is barred because Vioxx and its labeling was 

subject to and received pre-market approval by the FDA under 52 Stat. 1040, 21 U.S.C. 

§ 301. 

AS FOR A THIRTY-SIXTH 

DEFENSE, MERCK ALLEGES:

Plaintiff’s claims are barred in whole or in part under comment k to Section 402A of 

the Restatement (Second) of Torts. 

AS FOR A THIRTY-SEVENTH 

DEFENSE, MERCK ALLEGES:

Plaintiff’s claims are barred in whole or in part because Merck provided adequate 

“directions or warnings” as to the use of Vioxx and any other drug or pharmaceutical 

preparation Plaintiff alleges to have taken within the meaning of comment j to Section 

402A of the Restatement (Second) of Torts. 

AS FOR A THIRTY-EIGHTH 

DEFENSE, MERCK ALLEGES:

Plaintiff’s claims are barred under Section 4, et. seq., of the Restatement (Third) of 

Torts: Products Liability. 

AS FOR A THIRTY-NINTH 

DEFENSE, MERCK ALLEGES:

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Plaintiff’s claims are barred in whole or in part because Vioxx “provides net benefits 

for a class of patients” within the meaning of comment f to Section 6 of the Restatement 

(Third) of Torts: Product Liability. 

AS FOR A FORTIETH

DEFENSE, MERCK ALLEGES:

To the extent that Plaintiffs rely upon any theory of breach of warranty, such claims 

are also barred for lack of timely notice of breach and/or lack of privity and/or because 

the alleged warranties were disclaimed. 

AS FOR A FORTY-FIRST

DEFENSE, MERCK ALLEGES:

 To the extent Plaintiff’s claims invoke punitive damages, such claims violate the 

Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments of the Constitution of the 

United States, on the following grounds: 

(a) It is a violation of the Due Process and Equal Protection Clauses of 

the Fourteenth Amendment of the United States Constitution to 

impose punitive damages, which are penal in nature, against a civil 

Defendant upon a Plaintiff satisfying a burden of proof which is less 

than the "beyond a reasonable doubt" burden of proof required in 

criminal cases; 

(b) The procedures pursuant to which punitive damages are awarded 

may result in the award of joint and several judgments against 

multiple Defendants for different alleged acts of wrongdoing, which 

infringes the Due Process and Equal Protection Clauses of the 

Fourteenth Amendment of the United States Constitution; 

(c) The procedures pursuant to which punitive damages are awarded 

fail to provide a reasonable limit on the amount of the award 

against Defendant, which thereby violates the Due Process Clause 

of the Fourteenth Amendment of the United States Constitution. 

See Pacific Mut. Life Ins. Co. v. Haslip, 111 S. Ct. 1032, 113 L. Ed. 

2d 1. 

(d) The procedures pursuant to which punitive damages are awarded 

fail to provide specific standards for the amount of the award of 

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punitive damages which thereby violates the Due Process Clause 

of the Fourteenth Amendment of the United States Constitution; 

(e) The procedures pursuant to which punitive damages are awarded 

result in the imposition of different penalties for the same or similar 

acts and, thus, violate the Equal Protection Clause of the 

Fourteenth Amendment of the United States Constitution; 

(f) The procedures pursuant to which punitive damages are awarded 

permit the imposition of punitive damages in excess of the 

maximum criminal fine for the same or similar conduct, which 

thereby infringes the Due Process Clause of the Fifth and 

Fourteenth Amendments and the Equal Protection Clause of the 

Fourteenth Amendment of the United States Constitution; and, 

(g) The Retroactive application of punitive damages violates the 

contracts clause of the United States Constitution, Article I, Section 

10. 

(h) Plaintiffs’ claims for punitive damages violate the due process 

clause of Article I, Section 13 of the Constitution of Alabama, on the 

following grounds: 

(1) It is a violation of the due process clause to impose 

punitive damages which are penal in nature, upon a 

civil Defendant upon a Plaintiff satisfying a burden of 

proof less than the "beyond a reasonable doubt" 

burden of proof required in criminal cases; 

(2) The procedures pursuant to which punitive damages 

are awarded fail to provide a limit on the amount of 

the award against these defendants; 

(3) The procedures pursuant to which punitive damages 

are awarded are unconstitutionally vague; 

(4) The procedures pursuant to which punitive damages 

are awarded fail to provide specific standards for the 

amount of the award of punitive damages; and, 

(5) The award of the punitive damages in this case 

constituted a deprivation of property without due 

process of law. 

(i) Plaintiff’s attempt to impose punitive or extra-contractual damages 

on this defendant, on the basis of vicarious liability for the conduct 

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of others, violates the Fifth and Fourteenth Amendments of the 

United States Constitution. 

(j) The award of punitive damages to any of the Plaintiff in this action 

would constitute a deprivation of property without due process of 

law required under the Fifth and Fourteenth Amendments of the 

United States Constitution. 

(k) The procedures pursuant to which punitive damages are awarded 

permit the imposition of an excessive fine in violation of Article I, 

Section 15, of the Constitution of Alabama. 

(l) The award of punitive damages against these defendants in this 

action would violate the prohibition against laws that impair the 

obligations of contracts in violation of Article I, Section 22 of the 

Constitution of Alabama. 

(m) The procedures pursuant to which punitive damages are awarded 

are vague and unpredictable such that they violate the defendant’s 

right to defend himself pursuant to Article I, Section 10 of the 

Constitution of Alabama. 

(n) The procedures pursuant to which punitive damages are awarded 

permit the imposition of punitive damages in excess of the amount 

established by the legislature under Ala. Code, Section 27-1-17 

(1975), in violation of the Due Process Clause of the Fifth and 

Fourteenth Amendments of the U. S. Constitution and Article, 

Section 6, of the Alabama Constitution. 

AS FOR A FORTY-SECOND

DEFENSE, MERCK ALLEGES:

The Complaint seeks to make Merck liable for punitive damages. The United 

States Supreme Court has reversed the Alabama Supreme Court in the case styled 

BMW of North America, Inc. v. Gore, 116 S.Ct. 1589 (1996) on the issue of punitive 

damages. Merck adopts by reference the defenses, criteria, limitations, and standards 

mandated by the United States Supreme Court decision in that case and in Cooper 

Industries, Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424 (2001), State Farm Mutual 

Automobile Insurance Co. v. Campbell, 538 U.S. 408 (2003), and any subsequent 

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applicable decisions. 

AS FOR A FORTY-THIRD

DEFENSE, MERCK ALLEGES:

Merck affirmatively pleads that any punitive damages that the Plaintiff may 

recover in this case should be capped in keeping with Alabama Code Section 6-11-21, 

as amended in 1999 (Act. No. 99-358) and in the spirit of the Alabama Supreme Court’s 

decision in Oliver v. Towns, 738 So. 2d 798 (Ala. 1999). 

AS FOR A FORTY-FOURTH

DEFENSE, MERCK ALLEGES:

The demand for punitive damages in the instant case is subject to the limitations 

established by the Alabama legislature and set forth in Ala. Code §6-11-21, (1975). 

Merck adopts by reference the defenses, criteria, limitations, and standards mandated 

by this Alabama statute. The Alabama Supreme Court’s action in abolishing the 

legislatively created cap on punitive damages was unconstitutional and is without effect. 

Under the Constitutions of the United States and the State of Alabama, the Alabama 

Supreme Court cannot abolish the cap created by the legislature on punitive damages 

through this judicial decision. See Honda Motor Company, Ltd. v. Oberg, 512 U.S. 415, 

114 S. Ct. 2331, 2340 n.9 (1994). 

AS FOR A FORTY-FIFTH

DEFENSE, MERCK ALLEGES:

Merck avers that the punitive damage cap set out in Ala. Code §6-11-21, (1975) 

applies to the instant case. See Horton Homes, Inc. v. Brooks, 832 So. 2d 44 (Ala. 

2001). 

AS FOR A FORTY-SIXTH

DEFENSE, MERCK ALLEGES:

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Merck avers that the punitive damages award is subject to limitation based on 

harm that has occurred and harm that is likely to occur. See TXO Production Corp. v. 

Alliance Resources Corp. 113 S. Ct. 2711 (U.S. 1993). 

AS FOR A FORTY-SEVENTH

DEFENSE, MERCK ALLEGES:

Merck avers that the method of imposing punitive damages violates Amendment 

328, Section 6.11, which prohibits the use of a procedural rule to abridge, enlarge or 

modify the substantive right of any party. See Leonard v. Terminix Intern. Co., L.P. 854 

So. 2d 529 (Ala. 2002). 

AS FOR A FORTY-EIGHTH

DEFENSE, MERCK ALLEGES:

 The imposition of punitive damages is an act of policy making on the part 

of the judiciary, in violation of Article III, Section 43 of the Constitution of Alabama. 

AS FOR A FORTY-NINTH 

DEFENSE, MERCK ALLEGES:

Merck adopts the terms of any applicable legislative act or Alabama Supreme 

Court decision which now or hereafter precludes punitive damages or limits the amount 

of punitive damages that can be recovered in an action at law in Alabama. 

AS FOR A FIFTIETH 

DEFENSE, MERCK ALLEGES:

Inasmuch as the Complaint does not describe the alleged underlying claims with 

sufficient particularity to enable Merck to determine all of its legal, contractual and 

equitable rights, Merck reserves the right to amend and supplement the averments of its 

answer to assert any and all pertinent liability defenses ascertained through further 

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investigation and discovery of this action. Merck will further rely on all defenses that are 

included in the master Answer filed in the Multi-District Litigation proceedings before 

Judge Fallon of the Eastern District of Louisiana (the “MDL”), that may become 

available during discovery in this case or in the MDL or in the trial of this case. 

WHEREFORE, Merck respectfully demands judgment dismissing Plaintiff’s 

claims with prejudice and awarding Merck its reasonable costs and disbursements, 

together with such and other and further relief that the Court may deem just and proper. 

JURY DEMAND

Merck demands a trial by jury as to all issues so triable. 

 

s/Richard B. Garrett

Richard B. Garrett 

 Bar Number: (ASB-0782-A29R) 

Mike Brock 

Bar Number: (ASB-5280-B61R) 

F. Chadwick Morriss 

Bar Number: (ASB-8504-S75F) 

RUSHTON, STAKELY, JOHNSTON 

& GARRETT, P.A. 

Post Office box 270 

Montgomery, Alabama 36101-0270 

Telephone: 334/206-3100 

Fax: 334/263-4157 

 E-mail: rbg@rsjg.com

 rcb@rsjg.com

 fcm@rsjg.com 

CERTIFICATE OF SERVICE

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 I hereby certify that on August 18, 2006, I electronically filed the foregoing with 

the Clerk of the court using CM/ECF system which will send notification of such filing to 

the following: Tom Dutton and Elizabeth French. 

 s/Richard BGarrett 

 OF COUNSEL 

 

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