Sask. judge strikes down claims against Vioxx

Provided by: Canadian Press
Written by: JENNIFER GRAHAM
Jan. 19, 2007

REGINA (CP) - An attempt to certify a class-action lawsuit against makers of the drug Vioxx will push forward in Saskatchewan, but the Canadian government has been cleared of any wrongdoing.

Court of Queen's Bench has ruled that elements of the case against Merck Frosst Canada Ltd., and U.S.-based parent company Merck & Co. Inc., warrant further consideration.

However, the deciding judge stopped short of certifying the suit.

"The court has decided that there's validity in the action against Merck," Regina lawyer Tony Merchant said Friday.

"It's a huge success."

Merchant, who represents about 2,500 claimants, said issues concerning allegations of negligence, deceit, battery and breaches of consumer legislation will proceed.

The lawsuit alleges the pain killer Vioxx caused serious, even fatal, side effects including heart problems.

Merchant said the suit was not certified as a class action yet because the court wants a plan from the plaintiffs on how the case would be pursued.

"The judge has said that issues related to notification have to be sorted out, issues related to our plan for the trial have to be sorted out and we are to go back with more information," said Merchant.

But lawyer Maurice Laprairie, who represents Merck in Saskatchewan, said it's only a first ruling from Judge John Klebuc and "there's a long road to go."

"It was an interim decision only," said Laprairie.

"The causes of action that Merck did not seriously object to, (Klebuc) found those were causes of action that could be advanced. The ones that we objected to, and there are seven of them, were all struck."

Among them, Klebuc struck down allegations that Merck violated the Food and Drugs Act and committed mass deceit and assault.

"The mere allegation that some plaintiffs may have worried over whether they could suffer a heart attack or gastrointestinal complications . . . falls short of the requirements of the tort of assault," wrote Klebuc.

"More than mere fear of harm is required."

The judge also struck down claims of negligence against Health Canada and the Canadian government.

The suit had argued that Canadian officials should not have allowed Vioxx into the country in 1999 and did not act quickly enough when problems with the drug became apparent.

Vioxx was withdrawn from the market in 2004.

Despite the judge striking down several issues, Merchant still hailed the ruling as a success because an attempt to build a national class action in the U.S. failed.

"Everything that is important . . . the judge has said, 'yes there's a valid case and it can and may be pursued,' " said Merchant.

Merck argues that people who claim they suffered injury from taking Vioxx must pursue individual lawsuits.

In November, a Quebec Superior Court judge ruled that a class-action suit can go ahead in that province.