Pharmaceutical giant Merck & Co. has fielded thousands of lawsuits over its anti-inflammatory drug Vioxx since the pain reliever was yanked from pharmacy shelves in 2004.

Now the company's next legal challenge will go forward in a first-ever certified class action suit over Vioxx using Missouri's consumer fraud laws.

A Jackson County Circuit judge certified the class on June 12, and Merck swiftly responded last week with an appeal to the Missouri Court of Appeals Western District.

At stake is a possible payout to every Missouri resident who purchased Vioxx during the five years it was available.

The suit is different from the 26,500 personal injury lawsuits filed nationwide over Vioxx as of December. Those suits allege consumers were harmed by the side effects of the drug, namely heart attack, stroke and death.

The named plaintiffs in the Missouri class, Mary Plubell and Ted Ivey, instead claim Merck concealed the unsafe side effects of Vioxx. As a result, the Vioxx bought by Plubell, Ivey and thousands of other Missouri residents was worth less than they paid for it.

The suit specifically excludes anyone claiming injuries over their consumption of Vioxx.

"Missouri consumers were ripped off when they purchased Vioxx," said Don Downing, a St. Louis attorney with Gray, Ritter & Graham representing the plaintiffs. "The consuming public was misled by Merck with respect to the safety profile of Vioxx."

Patrick Stueve, a Kansas City attorney with Stueve Siegel Hanson, is Downing's co-counsel in the case.

Downing said the basis of the suit, Missouri's Merchandising Practices Act, is one of the most robust consumer protection measures in the country, one that provides a good vehicle for a class action.

"Under Missouri's MPA, this is the very type of mass deception that it was designed to deter," he said.

Plubell and Ivey's suit is not the first action based on economic losses that has been filed against Merck, but it is the first case to be certified as a class action. Earlier this month, the New Jersey Supreme Court threw out a product liability class action filed by consumers who did not claim injury but alleged Merck should pay for follow-up medical tests and consultations.

In a June 23 statement announcing its appeal of the class certification of the Missouri case, Whitehouse, N.J.-based Merck insisted a class action was inappropriate for the suit.

"In determining any damages, jurors would need to know whether each plaintiff would have continued taking Vioxx if more information had been available at the time and how much an alternative drug would have cost," said Ted Mayer, a New York attorney for Merck with Hughes Hubbard & Reed.

Merck's newest appeal focuses on the role of doctors in prescribing Vioxx to Missouri consumers.

As intermediaries between Merck and consumers, doctors had individual knowledge of the side effects of Vioxx, the company claims. Because of this, the case would require testimony from physicians and Merck sales representatives and evidence about Vioxx from medical journals and education seminars.

This is all information too specific to each plaintiff to qualify for a class action, Merck claims.

In his order certifying the class, Jackson County Circuit Judge W. Stephen Nixon rejected this argument. The central premise of the suit is whether Merck's failure to tell people that Vioxx was unsafe amounts to a violation of Missouri's consumer fraud laws, the judge wrote.

"That appears to be what the case is all about everything else is secondary," Nixon wrote.

Before the class in Plubell's case was certified, Merck's defense attorneys, led by John Aisenbrey, a Kansas City attorney with Stinson Morrison Hecker, fought to keep the suit in federal court.

Twice the case was remanded to Jackson County Circuit Court, on one occasion at the order of the 8th U.S. Circuit Court of Appeals.

In that instance, Merck argued the Class Action Fairness Act of 2005 required the suit to stay in federal court. The original petition was filed in 2004, before the act went into effect. But the plaintiffs' attorneys had to switch out class representatives after it was discovered the original plaintiff, Carol Green Richardson, couldn't provide receipts for her Vioxx purchases.

In one of the first Class Action Fairness Act cases considered by the appeals court, the 8th Circuit rejected Merck's contention, ruling that the amended complaint alleges the same bad conduct by Merck.

"While some defendants may benefit by having their cases in federal instead of state court, this is not the stated purpose of the act," the appeals court wrote in its January 2006 decision.

Stueve, the Kansas City attorney for the plaintiffs, said Merck's latest appeal raises many of the same arguments that have been struck down in earlier court decisions in the case.

"The court's order granting class certification is an important step in holding Merck accountable for its marketing of this product to Missouri consumers," Stueve said. "Hopefully it will be the guidepost for the rest of the country."

Publication: Missouri Lawyers Weekly

Publication Date: 30-JUN-08