Federal Court Agrees with Defense that Vioxx Class Action Claims Lack Typicality and Fail to Satisfy Predominance and Superiority Requirements of Rule 23(b)
The Vioxx litigation against Merck – consisting of thousands of individual and numerous class action lawsuits filed in state and federal courts – is well known. Merck withdrew Vioxx from the market in September 2004, following clinical reports that Vioxx led to an increased risk of heart attacks and strokes. By that time, however, an estimated 20 million people had used the prescription drug. The individual and class action lawsuits assert various tort and products liability claims against Merck. In February 2005, the Judicial Panel for Multidistrict Litigation transferred the cases to the federal court for the Eastern District of Louisiana, Judge Eldon Fallon, for pretrial proceedings. In re Vioxx Products Liab. Litig., ___ F.Supp.2d ___ (E.D. La. November 22, 2006) [Slip Opn., at 1-2]. Plaintiffs moved for certification of a nationwide class action against Merck; defense attorneys opposed the motion on two grounds: (1) that each claim must be litigated under the substantive law of each class members’ respective state (rather than New Jersey law, as plaintiffs’ claimed) thus defeating commonality of law, and (2) that each claim “involves separate and distinct factual issues.” Id., at 6. On November 22, 2006, the district court agreed with Merck’s defense team and refused to certify a nationwide Vioxx class action.
Merck secured FDA approval for the sale of the prescription drug Vioxx in May 1999 for relief of pain caused by osteoarthritis, rheumatoid arthritis, menstrual pain, and migraine headaches. In re Vioxx, at 1. Following centralization by the Judicial Panel, the Plaintiffs Steering Committee filed a Master Class Action Complaint alleging that Vioxx was defective, that Merck misrepresented its safety in that it knew or should have known that Vioxx was unsafe, and that Vioxx caused medical problems, injury and death. Id., at 4. In December 2005, plaintiffs moved to certify a nationwide class action under Rule 23(b)(3) consisting of all U.S. residents who used Vioxx and who claim personal injuries or assert wrongful death claims arising from such use, id. Merck opposed the motion on the grounds summarized above, see id., at 6.
The district court first held – following an extensive discussion – that under New Jersey law, the substantive law of each class members’ individual state would govern. In re Vioxx, at 7-15. The court summarized its analysis at page 15 as follows: “The relevant choice-of-law factors confirm that New Jersey substantive law should not be applied to the entire class, but instead, that the substantive law of each plaintiff’s home jurisdiction must be applied to his or her respective claims.” The federal court then turned to the requirements of Rule 23, but prefaced that discussion at pages 16 and 17 with a declaration of the difficulties presented in certifying a nationwide class action:
At the outset, the Court notes that its choice-of-law analysis presents significant hurdles to certification of a nationwide class of Vioxx users because the application of the laws of fifty-one jurisdictions to the claims of the proposed class creates problems for the typicality, adequacy, predominance, and superiority requirements of Rule 23. [Citations.]
Moreover, even if New Jersey law could be applied to the entire class, individualized factual issues concerning specific causation and damages dominate this litigation and create independent hurdles to certification. [Citation.] Nevertheless, the Court will carefully analyze the requirements of Rule 23 to determine whether these apparent hurdles can be overcome.
The district court readily concluded that numerosity requirement of Rule 23(a)(1) was met. In re Vioxx, at 17. The court also found commonality under Rule 23(a)(2) as to the development, manufacture and testing of Vioxx, and the effect of Vioxx on people. As the court explained at pages 17 and 18, “These common questions relate to ‘general causation,’ that is, whether or not Vioxx is capable of causing adverse cardiovascular events. Having presided over several bellwether trials in this MDL, the Court need not speculate on the issue of commonality, but rather is confident that common questions exist.” The remaining class action requirements, however, were not met.
With respect to the typicality requirement of Rule 23(a)(3), the federal court recognized that the claims of the putative class members need not be identical so long as they “share the same essential characteristics,” and acknowledged that all members of the class “assert various products liability claims against Merck under theories of negligence, strict liability, failure to warn, and defective design.” In re Vioxx, at 18. But the court found instructive the district court opinion in In re Baycol Prods. Liab. Litig., 218 F.R.D. 197, 205 (D. Minn. 2003), and quoted from it at length at page 18 as follows:
[T]he underlying facts and circumstances of this case do not make the proposed personal injury class amenable to class certification. This case involves a vast number of persons who took different dosages of [Vioxx], at different times, and possibly took [Vioxx] concomitantly with other prescription drugs. Because the theories asserted by this putative class are based on what [Merck] knew at the time [Vioxx] was prescribed, and whether [Merck] acted reasonably based on such knowledge, the claims of the named representatives are not typical of the class. In re Baycol, 218 F.R.D. at 205-06.
Thus, “‘While these claims involve common issues, they also involve individual issues such as injury, causation, the learned intermediary doctrine and comparative fault.’ In re Baycol Prods. Liab. Litig., 218 F.R.D. 197, 205 (D. Minn. 2003).” In re Vioxx, at 18. The court therefore concluded that typicality did not exist, particularly in light of the court’s choice-of-law determination. Id., at 18-19. This determination also caused the district court to hold that the adequacy of representation requirement of Rule 23(a)(4) also did not exist, “because of the factual and legal differences among class members’ claims,” id., at 19.
Finally, the federal court concluded that the predominance and superiority requirements of Rule 23(b)(3) were not satisfied. The court observed that plaintiffs bore the burden of “demonstrating that variations among the fifty-one applicable state laws do not ‘pose “insuperable obstacles” to certification,'” and held that it had failed to carry that burden. In re Vioxx, at 20. The court therefore held that common questions of law do not predominate. Id., at 20-24. The district court further noted that “courts have almost invariably found that common questions of fact do not predominate in pharmaceutical drug cases.” Id., at 20 (citations omitted). The district court also held that the superiority requirement was not met. Id., at 24-25. The court therefore refused to certify a nationwide class action against Merck.
NOTE: Two points bear noting. First, Judge Fallon expressly reserved any ruling on plaintiffs’ alternative request to certify individual state class action lawsuits against Merck and/or to remand the actions in the event nationwide certification is denied. In re Vioxx, at 5-6 n.5. Second, the Vioxx actions have been intensely litigated. As the federal court noted, “over 7,000 cases have been filed or transferred into this MDL, Merck has produced approximately 22 million pages of documents and a terabyte of data . . ., more than 310 depositions have been noticed relating to 168 witnesses, depositions have been taken for more than 145 days and now comprise over 35,000 pages of testimony, the Court has ruled on over 270 substantive motions and has dealt with more than 1,000 ongoing procedural motions, and the Court has conducted 4 bellwether trials in individual cases and will have conducted 5 such trials by the end of 2006.” Id., at 3 n.4.