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Court Snuffs Vioxx Suit

Individualized issues rule out class action, judge decides

By Jon Hood
ConsumerAffairs.com

March 21, 2009

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Individualized issues of proof have killed off another consumer class action, this one brought against Merck by consumers seeking to recover expenses resulting from their use of the heart medication Vioxx.

New Jersey Superior Court Judge Carol Higbee ruled that “problems with individualized issues of proof,” including why the drug was prescribed and how much each consumer paid, “would be unmanageable.”

The judge conceded that her decision was likely a “death knell” for most of the putative class members, since individual damages are so small that few if any are likely to bring suit on their own behalf. The judge insisted, however, that “the court cannot find that a class action is a superior form of resolution, either.”

The judge said that the court would have to make an individualized inquiry into whether concealment of cardiovascular risks played a role in the consumer’s decision to purchase the drug. As a result, the plaintiffs had failed to show a “causal nexus” between the company’s representations and consumers’ “ascertainable loss” — the money they paid for the drug. These issues built an “insurmountable barrier to class action.”

The case was brought on behalf of all consumers — except those in California — who purchased the drug from its introduction in June 1999 until September 2004, when it was withdrawn from the market due to safety concerns. The plaintiffs asserted claims under the New Jersey Consumer Fraud Act, alleging that Merck knowingly used misleading advertising to hide the risks presented by the drug.

Vioxx, an anti-inflammatory drug prescribed widely for arthritis and other ailments causing chronic pain, was withdrawn from the market after several studies showed it led to an increased risk of heart attack and stroke.

A study in 2000 found that the risk of these events was four times that of patients on an over-the-counter painkiller, and that the elevated risk began during the patients’ second month on the drug. In 2001, Merck began its own three-year study, which it cut short after finding that long-term use of Vioxx doubled the risk of heart attack or stroke.

In 2007, Merck settled another Vioxx class action for $4.85 billion. Unlike the economic suit, that claim was on behalf of patients who suffered cardiovascular problems from the drug, including heart attacks and strokes. That same year, the New Jersey Supreme Court declined to certify a class claiming that Merck deceived health insurance companies about Vioxx’s safety.

At its zenith, Vioxx was a widely-used and extremely profitable drug. The drug netted Merck $2.5 billion in 2003, and was prescribed to over 80 million patients worldwide during its five-year run. The drug was one of the most widely-used ever to be withdrawn from the market,

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