Merck Victory in Canada
Merck & Co., maker of the withdrawn pain reliever, Vioxx, has won a legal victory in Canada.
While most U.S. lawsuits were settled by the company when it agreed to a $4.85 billion settlement in November 2007, Canadian plaintiffs were left out of the settlement.
Former users in Canada who claim their heart attacks and strokes were linked to the drug formed two national group lawsuits.
Now a Canadian three-judge panel has granted Merck’s appeal and reversed the establishment of a one class. The panel in Saskatchewan Court of Appeals says that the plaintiffs failed to establish an identifiable class with common issues and failed to establish that the class action is a preferable action to resolving the outstanding claims.
The case “gives the impression of commonality, where commonality in fact does not exist,” Judge Gene Ann Smith wrote on behalf of the panel, as reported by Bloomberg.
Saskatchewan plaintiffs may appeal to the Supreme Court of Canada.
Merck still faces litigation from a class established in Ontario.
Good News for Plaintiffs?
An attorney for the plaintiffs says this actually may be good news because now they can pursue one national lawsuit instead of two.
In February, Merck was denied a request to put the Ontario lawsuit on hold and rejected Merck’s request to appeal the Ontario certification. Merck may now appeal to have the class decertified.
The Saskatchewan ruling determines certification issues for both jurisdictions and the Ontario suit should be thrown out as well, Evan Zelikovitz, a Merck spokesman, said in an e-mail to Bloomberg.
"We are pleased that the Court of Appeal agreed with us that the court below erred in certifying this action as a class," said Maurice Laprairie, Q.C. of MacPherson, Leslie & Tyerman LLP, Saskatchewan counsel for Merck Frosst and Merck & Co., Inc. "We argued against the creation, and later expansion, of a class, because each plaintiff's case is unique and depends on an individual set of facts."
Most Canadian provinces sued Merck after the drug was withdrawn from the market in 2004. Only Quebec, which has different rules, planned its own litigation opting out of a single national lawsuit.
In Canada, the class action not only claimed personal injury, but accused the company of misleading consumers with its advertising.
As many as 1.2 million Canadians used Vioxx and claim injury. They had sought $2.32 for each Vioxx pill sold, according to Anthony Merchant, a lawyer for the plaintiffs speaking to Bloomberg.
Earlier this month, Merck received a letter from the U.S. Attorney’s office for the District of Massachusetts announcing it was the focus of a grand jury investigation involving Merck’s research, marketing and advertising of Vioxx.
The drug was approved in 1999 but withdrawn from the market in September 2004 after clinical trials showed it doubled the risk of heart attack and stroke in long-term users. Internal company documents showed that Merck insiders were concerned about the risks years earlier. #