Vioxx Class Action Dismissed Again

March 19, 2009

A New Jersey judge Tuesday denied a request to certify a class action against Merck & Co. on behalf of consumers who sought reimbursement of out-of-pocket expenses for their use of the withdrawn pain drug Vioxx.

The ruling marked the second time that New Jersey courts have rejected pooling plaintiffs in Vioxx cases into a class action.

In denying the class certification, New Jersey Superior Court Judge Carol Higbee noted that “failure to grant a class action may sound a death knell for the claims of individuals … considering the small size of the damages alleged for each individual member of the class.”

But Higbee said in her 18-page ruling that proceeding with a class-wide trial of plaintiffs’ claims would be “unmanageable.”

“The decision of whether to prescribe a medication is made upon a host of individualized factors,” Higbee wrote.

She cited the lack of common issues and need for the jury to consider multiple individual factors among the reasons that “provide a sufficient basis for denial of the request for class certification.”

Vioxx, once a $2.5 billion a year drug, was withdrawn from the market in September of 2004 after a study linked its long-term use to increased risk of heart attacks and strokes.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

The latest decision by Judge Higbee involved claims for reimbursement of actual expenses paid for Vioxx prescriptions.

“We are pleased that the court agreed this was not an appropriate case to proceed as a class action,” Ted Mayer, an outside attorney for Merck, said in a statement.

In a previous class action rejection in 2007, the New Jersey Supreme Court denied class certification to insurers who had paid for Vioxx.

(Reporting by Bill Berkrot; Editing by Tim Dobbyn)

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