Vioxx Class Action Suit in California Rejected

May 15, 2009

A California state judge has rejected a proposed class-action lawsuit brought on behalf of state residents who took the painkiller Vioxx before it was pulled from the market in 2004.

Lawyers for former Vioxx users and health insurance plans wanted to sue the drug’s maker, Merck & Co., to recover at least part of what they paid for the medicine. The plaintiffs’ lawyers argued patients would have taken other pain relievers, had they known that Vioxx doubled risk of heart attack and stroke.

However, Judge Victoria Chaney of Los Angeles Superior Court ruled that the patients and insurers cannot sue as a group. She wrote that patients paid varying amounts for Vioxx and had too many other differences to sue jointly, including their medical histories and how long they took the anti-inflammatory medicine.

Steve Berman, managing partner of the law firm representing the plaintiffs — Hagens Berman Sobol Shapiro LLP of Los Angeles — said the firm was disappointed by the ruling.

“We are evaluating our options, which include appealing the court’s decision to deny class certification,” he said.

The firm estimates roughly 2.4 million residents of California took Vioxx and so would have been included if a class action had been approved by the judge. Altogether, about 20 million Americans took Vioxx while it was on the market from 1999 through 2004.

As in many other lawsuits over Vioxx, the plaintiff lawyers allege that Merck deliberately concealed the risks of Vioxx from the public and doctors.

“We believe that Merck’s communications and representations about Vioxx’s efficacy and safety were proper, accurate and timely,” Ted Mayer, outside counsel for Merck, said in a statement.

Merck, of Whitehouse Station, N.J., announced the ruling. It was issued on April 30, but a Merck spokesman said it just reached the company.

A nationwide class-action trial in Australia has been under way since March 30, and class action cases are pending in the Canadian provinces of Ontario and Qu├ębec.

However, juges have rejected some other proposed class action lawsuits seeking to recoup Vioxx costs.

In March, Superior Court Judge Carol Higbee in New Jersey rejected a similar lawsuit that sought to recover out-of-pocket costs consumers paid for Vioxx. And in 2007, New Jersey’s Supreme Court rejected a potential class-action lawsuit brought on behalf of health plans nationwide that paid for Vioxx prescription — a case that a plaintiff’s lawyer estimated could have cost the drugmaker up to $18 billion.

Merck is seeking dismissal of three other potential statewide class-action lawsuits, in Kentucky, Indiana and Illinois.

The company is now making payments on a $4.85 billion national settlement to end the bulk of U.S. lawsuits by Vioxx users and their survivors alleging the painkiller caused heart attacks, strokes or death.

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