Napier Legal Team - Class Actions

UPDATE (January 19, 2012): We are pleased to announce that a settlement has been reached in this action:

The settlement is for up to $36,881,250.00 depending on the number of approved claims and includes payments to provincial health insurers, payments towards legal costs, and payments for notice and claims administration. If the settlement is approved by the courts, individuals (or their estates) may be eligible to receive payment if they took Vioxx and then experienced a heart attack (myocardial infarction), sudden cardiac death or ischemic stroke. Spouses and children of eligible claimants may also be eligible for payment.
The next step is to seek court approval. A notice with details of the settlement approval hearings will be published in the near future. If the settlement is approved by each of the courts, a further notice will be published which will explain the steps for making a claim.
If you or someone you know used Vioxx and then experienced a myocardial infarction, sudden cardiac death or ischemic stroke, please contact us as soon as possible so we can determine if you are eligible for payment. If the settlement is approved by the courts, there will be a limited time to make a claim and it can take a significant amount of time to get all of the documents necessary to prove your claim.

An international drug company made a hit list of doctors who had to be "neutralised" or discredited because they criticised the anti-arthritis drug the pharmaceutical giant produced.

Staff at US company Merck &Co emailed each other about the list of doctors - mainly researchers and academics - who had been negative about the drug Vioxx or Merck and a recommended course of action.

The email, which came out in the Federal Court in Melbourne yesterday as part of a class action against the drug company, included the words "neutralise", "neutralised" or "discredit" against some of the doctors' names.

It is also alleged the company used intimidation tactics against critical researchers, including dropping hints it would stop funding to institutions and claims it interfered with academic appointments.

"We may need to seek them out and destroy them where they live," a Merck employee wrote, according to an email excerpt read to the court by Julian Burnside QC, acting for the plaintiff.

Merck & Co and its Australian subsidiary, Merck, Sharpe and Dohme, are being sued for compensation by more than 1000 Australians, who claim they suffered heart attacks or strokes as a result of Vioxx.

The drug was launched in 1999 and at its height of popularity was used by 80 million people worldwide because it did not cause stomach problems as did traditional anti-inflammatory drugs.

It was voluntarily withdrawn from sale in 2004 after concerns were raised that it caused heart attacks and strokes and a clinical trial testing these potential side affects was aborted for safety reasons.

Lead plaintiff Graeme Peterson, 58, claims the drug caused him to have a heart attack in 2003 after he took it for back pain and arthritis every day from May 2001.

Merck last year settled thousands of lawsuits in the US over the effects of Vioxx for $US4.85billion ($7.14 billion) but made no admission of guilt.

The company is fighting the class action in Australia.

The Federal Court was told yesterday that Merck wanted to gain the backing of researchers and doctors - or "opinion leaders" - in the fields of arthritis to help promote the drug to medical professionals when it was launched in 1999.

Mr Burnside said internal emails in April 1999 from Merck staff showed the company was not happy with what some researchers and doctors were saying about the drug.

"It gives you the dark side of the use of key opinion leaders and thought leaders ... if (they) say things you don't like to hear, you have to neutralise them," he said. "It does suggest a certain culture within the organisation about how to deal with your opponents and those who disagree with you."

The court was told that James Fries, professor of medicine at Stanford University, wrote to the then Merck head Ray Gilmartin in October 2000 to complain about the treatment of some of his researchers who had criticised the drug.

"Even worse were allegations of Merck damage control by intimidation," he wrote, according to Mr Burnside.

"This has happened to at least eight (clinical) investigators ... I suppose I was mildly threatened myself but I never have spoken or written on these issues."

Mr Burnside told the court Dr Fries went on to describe instances of intimidation, including one colleague who thought his academic appointment had been jeopardised and another who received phone calls alleging "anti-Merck" bias.

Dr Fries said in the letter that Merck had been systematically playing down the side effects of Vioxx and said the company's behaviour "seriously impinges on academic freedom". The court was also told a rheumatologist on Merck's Australian arthritis advisory board was angry he did not find out about Merck's decision to withdraw Vioxx until an ABC journalist rang to tell him. Mr Burnside said James Bertouch wrote to other members of the board saying he was "extremely disillusioned" with the company.

"In every possible way the company exerted itself to present the impression to the world at large that Vioxx did not provide any increased cardio risk ... when (a) it probably would and (b) it probably did," he wrote, according to Mr Burnside.

Peter Garling, acting for Merck, accused Mr Peterson of not taking the drug Vioxx in the months leading up to his heart attack in December 2003.

He said Pharmaceutical Benefits Scheme figures showed he did not fill a Vioxx prescription for the drug in the two months before his heart attack.

Mr Garling put to Mr Peterson during his cross-examination that this was because he had retired from his job as a safety consultant and therefore he did not need to take Vioxx because his back pain lessened.

Mr Peterson denied this meant he was not taking the drug.

"No, I wouldn't accept that at all," he said. "I can remember taking Vioxx regularly."

The trial, before Justice Chris Jessop, continues.

Latest news on Vioxx - appears to leave Ontario in charge of
the Class Action
Saskatchewan court rules VIoxx suits can't go ahead as class action
Tuesday, March 31, 2009 CBC News

Saskatchewan's highest court has declared that a lawsuit against the makers of the painkiller Vioxx can't proceed as a class action. Three justices on the Saskatchewan Court of Appeal ruled unanimously that a lower court made an error, Merck Frosst Canada Ltd. said in a news release. The company can still be sued, but it will have to be done
by individual plaintiffs. Last year, the Saskatchewan Court of Queen's Bench certified the
lawsuit as a class action. Regina lawyer Tony Merchant brought the action to court on behalf of about 2,500 claimants in all provinces except Quebec. The drug was sold by Merck Frosst before being taken off the market in 2004 over concerns about adverse reactions, including heart attacks and strokes. The company had argued that Vioxx lawsuits should be handled on an individual basis rather than as a class action.
Merchant said he'll appeal the decision to the Supreme Court of Canada.

Merck to Seek Appellate Review of Class Certification Decision
Canada NewsWire(press release)

Update on claims against Merck regarding the drug Vioxx

Merck & Co. announced on 9 November, 2007 that they are entering into an agreement regarding American plaintiffs who have filed claims against the Company in the United Sates with regard to Vioxx. This is not a class-action settlement as each claim will be evaluated on an individual basis. The agreement does NOT include plaintiffs from Canada or any other jurisdiction. Matt Napier advises that although this settlement agreement does not include the claimants in Nova Scotia whom he represents, it looks hopeful that Merck may also come to the table to discuss settlement of the Vioxx cases in Canada.

Although the agreement only applies to American plaintiffs, in order to give you some idea of Merck's thinking when it comes to settlements, we have set out below some of the criteria for plaintiffs there to qualify for compensation:

1. Only applies to claimants who have their cases filed with the courts on or before November 8, 2007;
2. Claimants will have to prove the following:
(a)an injury requiring objective medical proof of myocardial infarction (MI) or ischemic stroke (as defined in the agreement);
(b)documentary proof (receipt) of at least 30 Vioxx pills; and
(c)documentary evidence (receipt) of pills in sufficient number and proximity to the injury event to support a presumption of ingestion of Vioxx within 14 days before the claimed injury;
3. Merck does not admit that the drug caused damage nor do they admit any fault;
4. Administrators will be appointed who will examine individual cases to determine qualification based on objective, documented facts provided by claimants, including records sufficient for a scientific evaluation of independent risk factors;
5. Law firms involved in Vioxx claims must recommend enrollment in the program to 100% of their clients who allege either MI or ischemic stroke;
6. Payment obligations under the agreement will only be triggered if by March 1, 2008 (subject to extension by Merck), plaintiffs enroll in the settlement process:
(a)85% or more of all currently pending MI claims;
(b)85% or more of all currently pending ischemic stroke claims;
(c)85% or more of eligible claims involving a death; and
(d)85% or more of eligible claims alleging more than 12 months of use;
7. This agreement applies only to U.S. legal residents and those who allege that their MI or ischemic stroke occurred in the United States.

Merck will set up two funds,one for $4 billion for claims from those who experienced myocardial infarctions, and another for $850 million for claims from those who experienced ischemic strokes. The total dollar figure is fixed, even though the actual number of qualifying claimants is not. Therefore, the amount each claimant might expect to receive cannot be calculated at this time. They have stated that all other claimants will have to go to court and Merck will defend each case.

As stated above, this settlement agreement does not include Canadian claimants, and we will continue to liaise with lawyers across Canada to ensure the claims of Nova Scotians are progressed in the best way possible.

Background

Following the withdrawal of Vioxx from the market by Merck & Co. on 30th September, 2004, there have been more than 27,000 lawsuits started against the company. The first trial was held in Texas: on Aug. 19, 2005, Carol Ernst, the widow of a Vioxx user, was awarded US$253 million. To read more about this case, click here. The second trial took place in Atlantic City, New Jersey. This jury found Vioxx was not the cause of the heart attack suffered by Frederick Humeston. Read more Merck has advised that they will vigorously fight every case.

It is against this background that BOYNECLARKE LLP has secured the rights of Nova Scotians who have taken Vioxx by filing a class action in Nova Scotia. For those who are registered with our firm we would ask you to complete a contingency fee agreement, retainer and authorizations, to ensure your part in this action. For Frequently Asked Questions about Class Actions, and Vioxx, click here.

Carol Ernst, the widow of a Vioxx user, was awarded US$253 million...
That award included US$450,000 in actual damages, US$24 million for mental anguish and Carol Ernst's loss of companionship, and US$229 million in punitive damages. There are caps under Texas state law, which will reduce the amount of the punitive damages to US$1.65 million, making the total US$26.1 million. Merck has vowed to appeal this verdict, and that process will be very lengthy.

Kenneth C. Frazier, Senior Vice President and General Counsel of Merck, made a statement on August 20, 2005, in which he said, "We have strong points to raise on appeal and are hopeful that a higher court will correct the verdict. Even if the verdict were to be upheld, punitive damages under Texas law would be limited to approximately $2 million.

back to top

Jury found Vioxx was not the cause of the heart attack suffered by Frederick Humeston...
The second trial took place in Atlantic City, New Jersey, where the jury found that Vioxx was not the cause of the heart attack suffered by Frederick Humeston. The medical evidence indicated that Mr. Humeston had serious health problems prior to taking Vioxx, and that he only took the drug for a short period of time and sporadically.

back to top

The Napier Legal Team, part of the BOYNECLARKE LLP law firm - www.boyneclarke.ns.ca - is located at 33 Alderney Drive, Suite #600, Dartmouth, N.S. Canada B2Y 3Z5 P.O. Box 876