Merck loses appeal; faces prospect of nationwide class-action Vioxx lawsuit |

Merck loses appeal; faces prospect of nationwide class-action Vioxx lawsuit

NEW YORK – Merck & Co. suffered a significant legal setback Friday when an appeals court ruled a nationwide class-action lawsuit can go forward that allows health insurers and others to sue to recover the billions of dollars they spent on Vioxx.Merck attorney Ted Mayer called the ruling “deeply flawed” and said the company would appeal the unanimous decision by the three New Jersey Appellate Division judges to the state Supreme Court.If the case does go forward, Merck faces substantial financial risk because under New Jersey’s Consumer Fraud Act the company would have to pay triple damages to the plans. The plaintiffs allege Merck deliberately misrepresented Vioxx’s safety as it concealed the pain reliever’s health risks, which violates the Fraud Act.The Appellate Division found that New Jersey Superior Court Judge Carol E. Higbee acted properly when she said the state law can be applied to all plaintiffs. It also agreed with her contention that combining claims from health plans is a better method of settling suits than trying them individually.The Division said a class-action case would present complex management problems, but it would be a “relatively inexpensive” solution for the numerous health plans who have problems and complaints about Merck.The original suit was filed by the International Union of Operating Engineers Local 68 Welfare Fund. It said its health plan wouldn’t have paid for Vioxx if it had been aware of the drug’s dangers.In a statement, the union’s attorney, Chris Seeger said the ruling allows all non-government third-party payors such as health insurers, unions and large employers who absorbed the cost of Vioxx prescriptions for their plan members to sue Merck to recover their money.Merck removed Vioxx from the market in September 2004 after a study showed it doubled patients’ risk of heart attacks and strokes after 18 months of use. The company faces over 9,600 Vioxx-related lawsuits. There are nine other lawsuits filed on behalf of health plans that are awaiting class certification.So far, Merck has only faced individual plaintiffs in court. It has lost one case and won two others. One case is being heard by Higbee while another is going on in state court in Texas.There are seven judges in the New Jersey Supreme Court, and four judges must agree to hear the case before it is accepted, according to a Merck spokesman.

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