Judge: No Federal Class in Vioxx Suits

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By JANET McCONNAUGHEY
The Associated Press
Wednesday, November 22, 2006; 4:53 PM

NEW ORLEANS -- Thousands of federal lawsuits claiming the drug Vioxx caused heart attacks and other conditions that killed or injured people cannot be pooled into one national class action, a judge ruled Wednesday.

U.S. District Court Judge Eldon Fallon, who was appointed to deal with pretrial matters for all federal suits involving Merck & Co.'s withdrawn painkiller, did not rule on the possibility of separate personal injury class-action suits for each state and the District of Columbia.

The judge's reasoning in the rest of the ruling appears to support Merck's view that the cases must be looked at individually, said Ted Mayer, Hughes Hubbard and Reed, outside counsel for the drug company.

"We are pleased with the decision," said Kent Jarrell, a spokesman for Merck, which is based Whitehouse Station, N.J.

Merck has won six cases, three each in federal and various state district courts. A fourth state court victory was overturned and a retrial ordered. The company has lost one federal case and three in state courts.

Russ Herman, chairman of a committee of plaintiffs' lawyers, said he had expected the decision. "Federal jurisprudence currently tracks an industry theory that thousands of injured people should litigate individually in order to give a single wrongful manufacturer due process," he said.

Fallon's 25-page ruling rejected the plaintiffs' proposal to try all the cases under the laws in New Jersey. They argued that the company should reasonably expect to follow the laws of the state where it is headquartered.

"While this is true, it is just as true that Merck, an international corporation providing its drugs to every state in the nation, should expect to abide by every jurisdiction's laws," Fallon wrote.

Since plaintiffs in other states couldn't reasonably expect their personal injury claims to be governed by New Jersey law, it makes more sense to apply the law of each plaintiff's home state to that plaintiff's claims, Fallon ruled.

"Each plaintiff's home jurisdiction has a stronger interest in deterring foreign corporations from personally injuring its citizens and ensuring that its citizens are compensated than New Jersey does in deterring its corporate citizens' wrongdoing," he wrote.

Herman said the plaintiffs' committee will ask Fallon to have one class-action suit on the single question of whether Vioxx, which was sold from late 1999 until September 2004, changed the cardiovascular system in ways that caused heart attacks.

Mayer said he doesn't think they'll get that, either. He said Fallon did more than rule that differences among state laws make it impractical to bring all of the cases. "He went beyond that and said, even if one state's law applied, because individual issues dominate, class certification would not be appropriate," Mayer said.

Fallon wrote he was "confident that common questions exist" in the many personal injury suits among the 7,000-plus federal lawsuits before him _ something required for class actions.

But, he said, allegations that Merck failed to warn doctors adequately about the drug's alleged health risk, "necessarily turn on numerous individualized issues."

He wrote these issues include "the alleged injury; what Merck knew about the risks of the alleged injury when the patient was prescribed Vioxx; what Merck told physicians and consumers about those risks in the Vioxx label and other media, what the plaintiffs' physicians knew about the risks from other sources, and whether the plaintiffs' physicians would still have prescribed Vioxx had stronger warnings been given."

Merck shares rose 16 cents to close at $44.38 on the New York Stock Exchange.

The ruling came two days after Fallon rejected class action claims brought by nine countries. Plaintiffs in England, South Africa, Poland, the Netherlands, Israel, Germany, Australia, New Zealand, and Canada should use their own legal systems, he said Monday night. He had made a similar ruling in August, against suits brought by people in France and Italy.


© 2006 The Associated Press

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