N.J. court revives Vioxx lawsuit

Ruling reinstates lawsuit that aims to force Merck to fund medical monitoring program for past Vioxx users.

January 17 2007: 5:39 PM EST


CHICAGO (Reuters) -- A New Jersey appeals court has revived a lawsuit that sought to force drugmaker Merck & Co. Inc. to fund a medical monitoring program for patients who took the painkiller Vioxx.

The state appellate court ruled on Tuesday that N.J. Superior Court Judge Carol Higbee's decision to dismiss the lawsuit was premature and failed to give the plaintiffs the opportunity to prove legally accepted claims.

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The appeals court said in a 26-page opinion that it was not expressing an opinion on the ultimate viability of the lawsuit.

Plaintiffs in the case sought a court-administered medical screening program, funded by Merck (Charts), that would provide medical and diagnostic tests for each member of the class to detect potential heart problems arising from exposure to Vioxx.

"There is no medical science supporting the plaintiffs' position that they need to be monitored for cardiovascular conditions two years after Vioxx was voluntarily taken off the market," Merck attorney Ted Mayer said in an e-mailed statement.

Mayer said Merck is considering its options, including asking the New Jersey Supreme Court to review the case.

"Almost every court in the country has rejected class action treatment of medical monitoring claims because each plaintiff's claim needs to be evaluated individually," he said.

Deutsche Bank analyst Barbara Ryan said the ruling just means the case has been sent back to the lower court for a ruling.

If Merck is required to fund a medical monitoring program, Ryan said she doubted many former Vioxx users would take advantage of it because of the inconvenience and the low risk of suffering a heart attack if they had taken Vioxx only briefly.

"I don't think it would be a big issue for Merck or its shareholders," Ryan said.

Merck faces more than 27,000 lawsuits from those who claim to have been harmed by the drug, which once earned $2.5 billion a year.

Vioxx was pulled off the market in September 2004 after a study showed it doubled the risk of heart attack and stroke in patients taking it for at least 18 months.

The New Jersey-based drugmaker has insisted it will fight each lawsuit case by case rather than submit to any kind of broad settlement agreement.