Thursday, February 21, 2008

Merck Appeals Canadian Class Certification

Merck announced yesterday that it would seek review of a Canadian decision to certify a Vioxx class action. Here’s an excerpt of its press release on the matter:

Merck Frosst Canada Ltd. has learned that the Saskatchewan Court of Queen's Bench has decided to certify class proceedings in a lawsuit regarding VIOXX®. The Company intends to seek appellate review of the decision because it believes that each plaintiff's case should be tried separately.

"Our legal strategy remains the same," said Maurice Laprairie, of MacPherson, Leslie & Tyerman LLP, Saskatchewan counsel for Merck Frosst and Merck & Co., Inc. "Although we argued against the creation of a class, the Court's decision still requires that each plaintiff must prove his or her claims on an individual basis because each plaintiff's case is unique and depends on an individual set of facts. Heart attacks, for example, are unfortunately common in the population and caused by many different risk factors."

"The Company intends to defend these cases vigorously over the coming years, and we are confident that the courts will decide these cases based on sound science," said Mary M. Thomson, of Gowling Lafleur Henderson LLP, Canadian national counsel for Merck Frosst and Merck & Co., Inc. "We will continue to argue that centralized judicial management of individual cases, not a class action, is the preferable procedure for trying each case in a fair and expeditious manner."

Canada appears more willing to resolve these claims through class action procedures than did the U.S., where Judge Fallon consolidated and (is in the process of) settling the claims on a multidistrict litigation basis. Canada’s National Report, submitted in conjunction with Stanford’s Globalization of Class Actions Conference last December observes:

Class actions have given rise to a wide variety of claims, including: governmental liability, products liability and mass torts; breach of contract; insolvency proceedings; and, securities, environmental and competition law violations. Whether or not a class is certified, of course, depends on many factors. However, Canadian courts have not singled out a particular kind of claim as being particularly problematic for class action treatment. For example, a number of product liability and mass tort class actions have been certified. Regarding these kinds of claims, the Canadian courts’ approach appears more receptive than their American counterparts.


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