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Class Action Defense Issues-Merck Defense Of Individual Federal Vioxx Action Improves Likelihood That Class Action Status Will Be Denied

Latest Defense Verdict Weighs Heavily Against Class Action Treatment of Vioxx Claims

The verdict is in on Merck’s eleventh Vioxx trial, and a Louisiana federal jury agreed with defense attorneys that a Utah bank manager who suffered a heart attack after using Vioxx for almost a year had not established Vioxx caused his injury. Defense attorneys argued that the manager had used the drug for less than one year and had stopped using the drug four days before he suffered his heart attack. Importantly, the federal trial was before U.S. District Court Judge Eldon Fallon, who will ultimately rule on a pending motion to certify a Vioxx class action against Merck. Merck’s defense attorneys wisely have argued that each case should be tried individually, and have pressed to have cases tried in advance of any class action determination. The outcome of those cases weighs heavily against class action treatment. The most recent verdict comes in Merck’s fourth federal action – Merck’s defense team is now ahead three to one in federal court. Judge Fallon has presided over all four federal trials. Merck has tried seven state court actions, winning three, losing three and facing a retrial in the remaining action.

The next federal trial against Merck is scheduled for November 27, 2006; Judge Fallon will again serve as presiding judge. The range of factual differences and the differing focus of the expert testimony across the federal cases may well persuade Judge Fallon that the lawsuits are not suitable for class action treatment.