Friday, March 20, 2009

Higbee Denies Class Cert for N.J. Vioxx Users

Superior Court Judge Carol Higbee of New Jersey denied class certification to Vioxx users in Kleinman v. Merck & Co., Inc.  Plaintiffs alleged that Merck violated New Jersey's Consumer Fraud Act by deceptive marketing practices.  The proposed class definition included users from every state but California, where a similar action is pending.  Here's an excerpt of an article about the decision in the New Jersey Law Journal:

But Higbee found the plaintiffs failed to meet the class-action requirement of predominance, because questions affecting individual members outnumbered issues of law or fact common to the class.

To prove a consumer fraud claim, the plaintiffs would have to show that Merck acted unlawfully, that each class member sustained an ascertainable loss and that the unlawful conduct and ascertainable loss had a causal nexus. The first two issues could be put to a jury, but the third is "an insurmountable barrier," Higbee wrote.

A determination of whether Merck's concealment of risks had a causal relationship to each individual's decision to purchase Vioxx would require an "individualized determination" of the factors that led each class member to buy the drug, such as the person's medical history, current condition and use of other pain-relieving drugs.

The plaintiffs also failed to show that the claims of their class representatives are typical of the claims or defenses of the class. Plaintiff Elaine Kleinman's doctor testified that he would continue to prescribe Vioxx if it were still available and said he took it himself, even after it was pulled off the market. Since other plaintiffs' doctors are likely to feel Merck deceived them, the views of Kleinman's doctor go against the typicality requirement, Higbee wrote.

Finally, Higbee found the plaintiffs failed to show that a class action was a superior way of settling the matter. While recognizing that individual consumers may have no other means of resolving their claims, she said the lack of predominance would make the case unmanageable, even if the class were restricted to New Jersey.

David Cohen, one of the eight plaintiffs' lawyers in the case, agrees that litigation of claims of this size is impracticable without class certification. The two named plaintiffs, Kleinman and Ronald Martin, claim damages of less than $1,000 each. No decision has been made on whether to appeal, says Cohen, of Philadelphia's Saltz, Mongeluzzi, Barrett & Bendesky.


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