N.J. court denies class action in Merck Vioxx case
by Amy Swinderman  |  Email the author

ATLANTIC CITY, N.J.—In a victory for Merck & Co., a New Jersey judge on March 17 denied a request to certify a class action lawsuit against the drugmaker on behalf of consumers who sought reimbursement of their out-of-pocket expenses for the painkiller Vioxx, which was withdrawn from the market in 2004 after a medical study linked it to heart disease. The ruling marked the second time that New Jersey courts have rejected pooling plaintiffs in Vioxx cases into a class action, and according to the judge, "may sound a death knell" to class action claims by consumers.

In the lawsuit, Kleinman v. Merck & Co. Inc., filed in the Superior Court of New Jersey, Atlantic County, plaintiffs' lawyers sought to recoup the cost of the drug for all consumers outside California who bought Vioxx from June 1999, when it went on the market, to October 2004, when Merck withdrew it over safety concerns. Consumers also sought punitive damages.

Attorneys for Merck argued that proceeding with the plaintiffs' claims on a class-wide basis would not have resulted in a fair trial because each plaintiff's circumstances varied. For example, a jury would need to consider at trial whether each plaintiff would have continued taking Vioxx if more information had been available at the time, and if not, how much an alternative drug would have cost, attorneys said. Additionally, physicians received more information about Vioxx as the science progressed and as Merck continued to study the drug and communicate the results of those studies, they added.

As a result, the available information changed over time, and there would be no fair way to resolve all the plaintiffs' claims in one massive trial, Merck's attorneys argued.

In her 18-page ruling, Superior Court Judge Carol Higbee said the suit lacked the elements of predominance, typicality and superiority required for certification of a class.

"The decision of whether to prescribe a medication is made upon a host of individualized factors," Higbee wrote, adding, "a class-wide trial of plaintiffs' claims would be unmanageable."

Higbee noted that there may not be an alternative, superior form of resolution for the claims, considering the small size of the damages alleged for each member of the class.

"This decision may indeed be a death knell to the claims of most individual consumers. However, the court cannot find that a class action is a superior form of resolution, either," Higbee wrote.

The court's decision marks the second time New Jersey courts have denied certification to plaintiffs seeking class action status. In 2007, the New Jersey Supreme Court ruled in Engineers v. Merck that certification of a nationwide class of insurers who paid for Vioxx was not appropriate because common questions of fact did not predominate and a class action was not superior to other available mechanisms for resolving their claims. It returned the case to a lower court for further proceedings.

Vioxx, once a $2.5 billion a year drug, was withdrawn from the market in September 2004 after a study linked its long-term use to increased risk of heart attacks and strokes.

After winning the majority of product liability trials that reached a jury, Merck agreed to pay $4.85 billion to settle thousands of personal injury claims from former users who suffered heart attacks and strokes.

Ted Mayer of Hughes, Hubbard & Reed, outside counsel for Merck, said in a statement that the Whitehouse Station, N.J.-based company is "pleased that the court agreed this was not an appropriate case to proceed as a class action."

Following the news on March 17, Merck shares rose 40 cents, or 1.5 percent, to $26.61, a modest increase compared to the broader markets.