Issue: May 2006
May 01, 2006
2 min read
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New Jersey court says class action Vioxx lawsuit should proceed

Merck lawyers plan to take their appeal to the state Supreme Court.

Issue: May 2006
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A New Jersey appeals court recently ruled that a nationwide class action lawsuit against Merck & Co. over the painkiller Vioxx should proceed.

The decision opens the door for private health insurers and other plaintiffs to recoup billions of dollars they spent on Vioxx, the focus of more than 9600 state and federal lawsuits. Merck recalled Vioxx in 2004 after a study showed that the drug doubled patients’ heart attack and stroke risks after 18 months or longer use.

Merck attorneys criticized the March 31 ruling and vowed to appeal it to the New Jersey State Supreme Court, according to a Wall Street Journal report. Under New Jersey’s Consumer Fraud Act, Merck would have to pay triple damages. Plaintiffs say Merck “deliberately misrepresented” Vioxx’s safety and hid the drug’s health risks, thus violating New Jersey law, according to the report.

The appeals court upheld a superior court judge’s ruling that state law applies to all plaintiffs. It also backed the judge’s opinion that combining claims from health plans is a better way to settle suits than trying them individually.

Nine other lawsuits filed on behalf of health plans are awaiting class certification, according to the Wall Street Journal. Merck has only faced individual plaintiffs so far.

Another ruling against Merck

In other Vioxx-related news, a New Jersey jury ruled against Merck in early April. At the end of a five-week trial involving two cases, the jury awarded $13.5 million in damages to plaintiff John McDarby, 77, of Park Ridge, N.J. The jury rejected the claim of fellow plaintiff Thomas Cona, 60, of Cherry Hill, N.J., that Vioxx caused his heart attack. The trial was overshadowed by allegations that Cona’s attorney tried to sway the jury by commenting about letters his client wrote to jurors. Merck attorneys called their opponent’s comments a “transparent attempt to improperly influence the jury by suggesting his client is personally thankful for their [jury members’] efforts while Merck is not,” the Wall Street Journal reported. Merck attorneys pledged to appeal the McDarby ruling.

A federal jury in New Orleans ruled in favor of Merck in February, ending the first federal Vioxx trial. The win was Merck’s second overall. Last December, a trial in Houston ended in a deadlock. The retrial began in early February.

Also in December, the New England Journal of Medicine reported that Merck withheld data on three patients who suffered heart attacks while taking Vioxx. Merck officials denied the omissions.

In November, a New Jersey state jury ruled in Merck’s favor in another trial. The jury cleared the company of liability for a Vioxx user’s heart attack and rejected claims that the company failed to warn consumers about risks. The panel also rejected allegations of Merck engaging in unethical marketing practices.