A New Jersey appeals panel has handed Merck & Co. a victory in the mass litigation over its painkiller Vioxx by barring 98 English and Welsh users of the drug from suing in the state's courts.
The Vioxx plaintiffs wanted to take advantage of New Jersey's plaintiff-friendly laws in Vioxx litigation and avail themselves of fee-switching rules that do not exist in the United Kingdom, the other possible forum.
The ruling is important because British law permits recovery of damages caused by defective products but not punitive damages, and it has no equivalent to New Jersey's Consumer Fraud Act, which provides for treble damages and fee shifting. Those causes have been pleaded successfully in U.S. Vioxx cases.
In June 2007 Atlantic County Superior Court Judge Carol Higbee found Merck liable for $4.4 million in fees in two U.S. plaintiffs' cases that included fraud and punitive damage claims impermissible in the United Kingdom. A large portion of that fee went to a plaintiff who prevailed only on a consumer fraud award of $45 trebled to $135.
The plaintiffs' suits allege that Vioxx caused heart attacks and strokes and that Merck failed to warn users of the dangers. The Whitehouse Station, N.J., company has won eight cases tried by Higbee, lost six and had a hung jury in three, and three of Merck's losses included awards of damages for consumer fraud, according to a company spokeswoman.