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Supreme Court Rejects Vioxx Class Action

Seeger, lead attorney for the West Caldwell, N.J.-based International Union of Operating Engineers Local 68, estimated a loss could have cost Merck $15 billion to $18 billion; its revenues last year were $22.6 billion.

Seeger noted the high court did not rule that the state's consumer fraud law cannot be applied to health plans from other states, so those claims can still be pursued in New Jersey, with triple-damage provisions in play.

"Merck temporarily dodged a bullet. Merck didn't totally dodge the bullet," he said.

Seeger said health plans with close to $1 billion in claims have already contacted him and he expects more to sign on for individual suits.

Morelli said the fact that juries in New Jersey, Merck's home state, have ruled in several cases that Merck violated the state's consumer fraud law bodes well for any future insurance plan suits.

Seeger, who this year won a $47.5 million jury award for a heart attack survivor who took Vioxx, sued Merck in October 2003. He argued that if Merck had disclosed all risks earlier, prescription plans would have favored other painkillers, generally much cheaper ones.

A state judge and then an appeals court approved the class action, but Merck kept appealing.

The state's highest court ruled 5-0 Thursday that a nationwide class action is not the best way to handle the cases because while Merck ran a uniform marketing campaign for Vioxx, insurance plans made individual decisions about covering the drug.

The judges also wrote that the engineers' union and the other third-party payers have "considerable resources," and that it was unlikely their claims were too small to pursue individually.

Beisner, the Merck lawyer, said the drugmaker has "very good" prospects for winning any individual suits filed by health plans because they had adequate information about the drug's risks.


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