Merck Statement on New Jersey Court Ruling Denying Certification of Class of Plaintiffs Seeking Reimbursement for Out-of-Pocket Vioxx Costs
WHITEHOUSE STATION, N.J., March 17, 2009 - Merck & Co., Inc. today said it was pleased that a New Jersey state court denied plaintiffs' request to certify a class of consumers who sought reimbursement for out-of-pocket VIOXX costs.
Applying New Jersey law, Superior Court Judge Carol E. Higbee ruled that proceeding with a classwide trial of plaintiffs' claims would be "unfair" and "unmanageable." She added: "The decision of whether to prescribe a medication is made upon a host of individualized factors, including other risk factors the plaintiffs possessed and whether other drugs were effective in relieving the plaintiffs' pain."
"We are pleased that the court agreed this was not an appropriate case to proceed as a class action," said Ted Mayer of Hughes, Hubbard & Reed, outside counsel for Merck.
According to Mayer, proceeding with plaintiffs' claims on a classwide basis would not have resulted in a fair trial because each plaintiff's circumstances varied. For example, a jury would need to consider at trial whether each plaintiff would have continued taking VIOXX if more information had been available at the time, and if not, how much an alternative drug would have cost. Additionally, physicians received more information about VIOXX as the science progressed and as Merck continued to study VIOXX and communicate the results of those studies. As a result, the available information changed over time. For these reasons, there would be no fair way to resolve all the plaintiffs' claims in one massive trial.
New Jersey courts have now twice denied certification to plaintiffs seeking class action status. In addition to today's decision, the New Jersey Supreme Court ruled in Engineers v. Merck in 2007 that certification of a nationwide class of insurers who paid for VIOXX was not appropriate because common questions of fact did not predominate and a class action was not superior to other available mechanisms for resolving their claims. It returned the case to a lower court for further proceedings.
Today's court decision addresses only consumer economic loss claims. Previously, the Company established a resolution program for personal injury claims in the United States involving myocardial infarctions and ischemic strokes.
Status of Litigation
In November of 2007, Merck entered into an agreement to resolve state and federal myocardial infarction and ischemic stroke personal injury claims filed or tolled by Nov. 9, 2007. More than 99 percent of all eligible personal injury claimants enrolled in the program, and the program is proceeding as scheduled.
Prior to the settlement, Merck had won the large majority of personal injury cases that went to trial and thousands of lawsuits had been dismissed.
Merck & Co., Inc. is a global research-driven pharmaceutical company dedicated to putting patients first. Established in 1891, Merck currently discovers, develops, manufactures and markets vaccines and medicines to address unmet medical needs. The Company devotes extensive efforts to increase access to medicines through far-reaching programs that not only donate Merck medicines but help deliver them to the people who need them. Merck also publishes unbiased health information as a not-for-profit service. For more information, visit www.merck.com.
This press release contains "forward-looking statements" as that term is defined in the Private Securities Litigation Reform Act of 1995. These statements are based on management's current expectations and involve risks and uncertainties, which may cause results to differ materially from those set forth in the statements. The forward-looking statements may include statements regarding product development, product potential or financial performance. No forward-looking statement can be guaranteed and actual results may differ materially from those projected. Merck undertakes no obligation to publicly update any forward-looking statement, whether as a result of new information, future events, or otherwise. Forward-looking statements in this press release should be evaluated together with the many uncertainties that affect Merck's business, particularly those mentioned in the risk factors and cautionary statements in Item 1A of Merck's Form 10-K for the year ended Dec. 31, 2008, and in any risk factors or cautionary statements contained in the Company's periodic reports on Form 10-Q or current reports on Form 8-K, which the Company incorporates by reference.
Posted: March 2009