Metropolitan News-Enterprise


Wednesday, December 16, 2009


Page 1


Appeals Court: Vioxx Ad Suits Cannot Proceed as Class Action




Consumers who claim they were misled into purchasing the painkiller Vioxx before it was pulled from the market in 2004 cannot sue the manufacturer in a class action, the Court of Appeal for this district ruled yesterday.

Affirming a ruling by then-Los Angeles Superior Court Judge Victoria Chaney—who has since been elevated to the Court of Appeal—Div. Three said the judge did not err in concluding that individual issues as to damages make class certification of an action for unfair competition and false advertising inappropriate.

Vioxx was introduced in 1999 and removed from the market five years later, after complaints that it led to adverse cardiovascular effects. The manufacturer, Merck & Co. Inc., faces billions of dollars in legal claims by users of the drug.

2.4 Million Californians

In the proposed class action, brought on behalf of an estimated 2.4 million Californians—out of about 20 million Vioxx users nationwide—the plaintiffs did not seek damages for any adverse health effects, but sought reimbursement for the difference between what they paid for Vioxx and what they would have paid for less costly but safer medications.

Merck contended, as it has consistently, that its representations regarding the drug—both to doctors and the public—were accurate and proper.

Chaney agreed that liability could be determined with respect to the class as a whole, but said that damages would vary according to such factors as each litigant’s medical history, how much they paid for the drug, how long they took Vioxx, and the extent to which they relied on the allegedly false marketing.

The judge also concluded that the individual plaintiffs’ claims were atypical of third parties who paid for the drug on behalf of subscribers to prescription drug plans.

Justice Walter Croskey, writing for the Court of Appeal, said the plaintiffs failed to demonstrate that Chaney’s ruling was clearly erroneous.

Third-Party Payors

With respect to the third-party payors, the justice noted, many conducted vigorous reviews to determine whether a particular patient required Vioxx rather than a less-expensive drug. Those payors, the justice wrote, cannot recover on the plaintiffs’ theory because “every penny they paid for Vioxx was paid for a patient for whom a traditional [non-steroidal anti-inflammatory drug] was not a viable medical option.”

The evidence, Croskey went on to say, also supported Chaney’s conclusion that damages could not, as the plaintiffs proposed, be determined simply by comparing the price a consumer paid for Vioxx to that he or she would have paid for the same quantity of naproxen, a generic alternative.

The trial judge, Croskey said, was entitled to reject the use of naproxen for class-wide comparison, based on evidence that after Vioxx was withdrawn from the market, most Vioxx users switched to other brand-name drugs such as Celebrex rather than to generics. Because restitution for unfair competition requires proof of a measurable amount to be repaid, the justice said, “[t]he failure of naproxen as a viable class-wide comparator...defeats the claim for class-wide restitution.”

The justice elaborated:

Even if plaintiffs establish, class-wide, that Merck misrepresented the cardiovascular risks of Vioxx in a manner that was likely to deceive plaintiffs and their prescribing physicians, no plaintiff would be able to recover without first identifying a proper comparator drug, the cost of which would provide the actual value to the patient of the Vioxx received. As the trial court concluded, on the evidence, that the issue of a proper comparator was a patient-specific issue, incorporating the patient’s medical history, treatment needs, and drug interactions, the trial court properly concluded that restitution could not be calculated on a class-wide basis.”

Attorneys on appeal were Steve W. Berman, Craig R. Spiegel and Elaine T. Byszewski of Hagens Berman Sobol Shapiro for the plaintiffs, and Richard B. Goetz and Charles C. Lifland of O’Melveny & Myers for Merck.

The case is In re Vioxx Class Cases, B216521.


Copyright 2009, Metropolitan News Company