NJ Judge Won't Certify Class Action By Vioxx Users

In March, an Atlantic County, NJ, judge denied a request to certify a class action against Merck & Co. on behalf of consumers for their out-of-pocket expenses for the painkiller Vioxx, which was withdrawn from the market in 2004 after a medical study linked it to heart disease.

Superior Court Judge Carol Higbee, in an 18-page ruling, said the suit lacked the elements of predominance, typicality and superiority required for certification of a class. “The decision of whether to prescribe a medication is made upon a host of individualized factors,” Higbee wrote, adding that “a class-wide trial of plaintiffs' claims would be unmanageable.”

Background

The ruling, in Kleinman v. Merck & Co., Inc., ATL-L-3954-04, marked the second time that New Jersey courts have denied class certification to Vioxx plaintiffs. In 2007, the state Supreme Court affirmed Higbee's rejection of a class-action suit by unions and health insurers that paid for Vioxx prescriptions.

The same year, Merck agreed to pay $4.85 billion to settle thousands of personal injury claims by former Vioxx users who suffered cardiovascular problems, which the Whitehouse Station, NJ, company hoped would spell an end to litigation over the drug.

The Current Ruling

Judge Higbee, who has been in charge of New Jersey Vioxx litigation since it was designated a mass tort in 2003, conceded that in the current case, “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.”

The suit, by a putative class of consumers who took Vioxx during the five years it was on the market and paid some or all of its costs, claimed Merck violated the state Consumer Fraud Act by engaging in a deceptive marketing campaign to hide evidence of cardiovascular risks associated with use of the drug, of which the company was aware. The plaintiffs asked Judge Higbee to have a jury assess aggregate liability, based on common facts pertaining to development and marketing of the drug, and to appoint a special master to calculate individual class members' damages.

The putative class would have included users from every state except California, where a similar suit is already pending. In the alternative, the plaintiffs asked the judge to certify a class of New Jersey users if she declined to apply the state Consumer Fraud Act to out-of-staters. Judge Higbee, however, found the plaintiffs failed to meet the class-action requirement of predominance, because questions affecting individual members outnumbered issues of law or fact common to the class.

To prove a consumer fraud claim, the plaintiffs would have to show that Merck acted unlawfully, that each class member sustained an ascertainable loss and that the unlawful conduct and ascertainable loss had a causal nexus. The first two issues could be put to a jury, but the third is “an insurmountable barrier,” Higbee wrote. A determination of whether Merck's concealment of risks had a causal relationship to each individual's decision to purchase Vioxx would require an “individualized determination” of the factors that led each class member to buy the drug, such as the person's medical history, current condition and use of other pain-relieving drugs.

The plaintiffs also failed to show that the claims of their class representatives are typical of the claims or defenses of the class. Plaintiff Elaine Kleinman's doctor testified that he would continue to prescribe Vioxx if it were still available and said he took it himself, even after it was pulled off the market. Since other plaintiffs' doctors are likely to feel Merck deceived them, the views of Kleinman's doctor go against the typicality requirement, Higbee wrote.

Finally, Judge Higbee found that the plaintiffs failed to show that a class action was a superior way of settling the matter. While recognizing that individual consumers may have no other means of resolving their claims, she said the lack of predominance would make the case unmanageable, even if the class were restricted to New Jersey.

Attorneys Comment

David Cohen, one of the eight plaintiffs' lawyers in the case, agrees that litigation of claims of this size is impracticable without class certification. The two named plaintiffs, Kleinman and Ronald Martin, claim damages of less than $1,000 each. No decision has been made on whether to appeal, says Cohen, of Philadelphia's Saltz, Mongeluzzi, Barrett & Bendesky.

The lead plaintiffs' counsel is another Philadelphia firm, Spector, Roseman, Kodroff & Willis. Merck counsel Theodore Mayer, of New York's Hughes, Hubbard & Reed, said in a statement that “we are pleased that the court decided this was not an appropriate case to proceed as a class action.”

Charles Toutant is a reporter for the New Jersey Law Journal, an Incisive Media sister publication of this newsletter in which this article first appeared.

In March, an Atlantic County, NJ, judge denied a request to certify a class action against Merck & Co. on behalf of consumers for their out-of-pocket expenses for the painkiller Vioxx, which was withdrawn from the market in 2004 after a medical study linked it to heart disease.

Superior Court Judge Carol Higbee, in an 18-page ruling, said the suit lacked the elements of predominance, typicality and superiority required for certification of a class. “The decision of whether to prescribe a medication is made upon a host of individualized factors,” Higbee wrote, adding that “a class-wide trial of plaintiffs' claims would be unmanageable.”

Background

The ruling, in Kleinman v. Merck & Co., Inc., ATL-L-3954-04, marked the second time that New Jersey courts have denied class certification to Vioxx plaintiffs. In 2007, the state Supreme Court affirmed Higbee's rejection of a class-action suit by unions and health insurers that paid for Vioxx prescriptions.

The same year, Merck agreed to pay $4.85 billion to settle thousands of personal injury claims by former Vioxx users who suffered cardiovascular problems, which the Whitehouse Station, NJ, company hoped would spell an end to litigation over the drug.

The Current Ruling

Judge Higbee, who has been in charge of New Jersey Vioxx litigation since it was designated a mass tort in 2003, conceded that in the current case, “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.”

The suit, by a putative class of consumers who took Vioxx during the five years it was on the market and paid some or all of its costs, claimed Merck violated the state Consumer Fraud Act by engaging in a deceptive marketing campaign to hide evidence of cardiovascular risks associated with use of the drug, of which the company was aware. The plaintiffs asked Judge Higbee to have a jury assess aggregate liability, based on common facts pertaining to development and marketing of the drug, and to appoint a special master to calculate individual class members' damages.

The putative class would have included users from every state except California, where a similar suit is already pending. In the alternative, the plaintiffs asked the judge to certify a class of New Jersey users if she declined to apply the state Consumer Fraud Act to out-of-staters. Judge Higbee, however, found the plaintiffs failed to meet the class-action requirement of predominance, because questions affecting individual members outnumbered issues of law or fact common to the class.

To prove a consumer fraud claim, the plaintiffs would have to show that Merck acted unlawfully, that each class member sustained an ascertainable loss and that the unlawful conduct and ascertainable loss had a causal nexus. The first two issues could be put to a jury, but the third is “an insurmountable barrier,” Higbee wrote. A determination of whether Merck's concealment of risks had a causal relationship to each individual's decision to purchase Vioxx would require an “individualized determination” of the factors that led each class member to buy the drug, such as the person's medical history, current condition and use of other pain-relieving drugs.

The plaintiffs also failed to show that the claims of their class representatives are typical of the claims or defenses of the class. Plaintiff Elaine Kleinman's doctor testified that he would continue to prescribe Vioxx if it were still available and said he took it himself, even after it was pulled off the market. Since other plaintiffs' doctors are likely to feel Merck deceived them, the views of Kleinman's doctor go against the typicality requirement, Higbee wrote.

Finally, Judge Higbee found that the plaintiffs failed to show that a class action was a superior way of settling the matter. While recognizing that individual consumers may have no other means of resolving their claims, she said the lack of predominance would make the case unmanageable, even if the class were restricted to New Jersey.

Attorneys Comment

David Cohen, one of the eight plaintiffs' lawyers in the case, agrees that litigation of claims of this size is impracticable without class certification. The two named plaintiffs, Kleinman and Ronald Martin, claim damages of less than $1,000 each. No decision has been made on whether to appeal, says Cohen, of Philadelphia's Saltz, Mongeluzzi, Barrett & Bendesky.

The lead plaintiffs' counsel is another Philadelphia firm, Spector, Roseman, Kodroff & Willis. Merck counsel Theodore Mayer, of New York's Hughes, Hubbard & Reed, said in a statement that “we are pleased that the court decided this was not an appropriate case to proceed as a class action.”

Charles Toutant is a reporter for the New Jersey Law Journal, an Incisive Media sister publication of this newsletter in which this article first appeared.