Merck Wins Extension to Appeal Vioxx Certification in Ontario

May 11, 2009—Merck & Co. won an extension to appeal the certification of an Ontario group lawsuit, claiming the painkiller Vioxx caused heart attacks and strokes, because certification of a similar suit was overturned in Saskatchewan.

Merck, which has settled most of its Vioxx lawsuits in the U.S., has until May 21 to file notice of appeal at the Court of Appeal for Ontario, Judge Paul Rouleau said today. The appeal period had expired four months ago, he said.

Merck, based in Whitehouse Station, New Jersey, was sued on behalf of all Canadian Vioxx users, except those in Saskatchewan and Quebec, in Ontario Oct. 1, 2004. A separate lawsuit was filed in Saskatchewan. Both suits were certified as class actions in 2008.

Merck appealed both rulings. Judge Denise Bellamy of the Ontario Superior Court of Justice on Nov. 29, 2008 refused the company’s request for a hearing before the Divisional Court. The Saskatchewan Court of Appeal quashed the certification order in that province March 30.

The decertification of the Saskatchewan suit “would have been an important consideration” for Bellamy, Merck said. The company claimed “in the context of class-action litigation involving overlapping national classes, it is simply unfair to have what they submit are conflicting decisions involving the same product,” Rouleau wrote.

Without Merit

Class certification provides leverage for plaintiffs, making it easier to finance lawsuits and negotiate settlements.

The plaintiffs claimed the appeal was without merit.

Merck pulled Vioxx from the market in 2004 after an independent study showed it increased the risk of heart attacks and strokes. The company agreed to pay $4.85 billion to settle lawsuits by thousands of U.S. plaintiffs. That settlement doesn’t include plaintiffs in Canada and other countries.

Rouleau said Merck will have to decide whether Bellamy’s order was final or temporary. The Ontario appeals court considers only final decisions made by lower court judges. To win at the appeals court stage, Merck will have to convince the judges Bellamy’s order was final as well as that the judge who certified the suit made a mistake.

Merck may go back to the Divisional Court if it determines Bellamy’s order was temporary, Rouleau said.

The case is Between Benny Mignacca and Merck Frosst Canada Ltd. M37488, Court of Appeal for Ontario (Toronto).

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