TORONTO, July 30 /CNW/ - Justice Maurice Cullity of the Ontario Superior
Court of Justice ordered that an action relating to the prescription drug
VIOXX be certified as a national class action excluding residents of Quebec
and Saskatchewan. Merck, the company that manufactures and markets the drug,
voluntarily withdrew VIOXX, a prescription pain reliever and anti-inflammatory
drug, from the worldwide market on September 30, 2004.
In the court's decision, two classes were approved. The first class
includes all persons in Canada, including their estates, who were prescribed
and ingested VIOXX, other than residents of Quebec and Saskatchewan. The
second approved class includes family members of the first class, including
spouses, children, grandchildren, parents, grandparents, brothers and sisters.
This decision is significant as it certifies national classes
notwithstanding the fact that similar classes were certified in Saskatchewan.
Among the 11 issues the Ontario court approved for determination are
whether VIOXX was defective or unfit for the purpose for which it was intended
and sold, and whether Merck had a duty to warn the class members of the
potentially harmful risks from VIOXX; and if so, whether Merck failed to warn
consumers in a timely manner. Another issue approved for determination is
whether the classes can elect to require Merck to account for all or part of
the gross revenue or net income received from the sale of VIOXX. The court
will also determine whether punitive damages should be awarded.
In the United States, the US Federal Court rejected a proposed national
class action in 2006. Merck subsequently entered into a settlement of the
outstanding US litigation against it by establishing a settlement fund of
approximately $4.85 billion to compensate persons who suffered harm from
ingesting VIOXX. Residents of Canada were not included in that settlement.
The plaintiff classes are represented by a national consortium of 17 law
firms, which the court recognised in its reasons, includes many respected
class action counsel from across Canada.
"It has been a long, hard fought battle but we finally wrestled Merck
into the court room. We are obviously delighted with the result and the
well-reasoned decision of Justice Cullity. Our national team is pressing on
with the next stage of this litigation," said Harvey T. Strosberg, QC of
Sutts, Strosberg who argued the motion along with Michael Peerless of Siskinds
For further information:
For further information: Harvey T. Strosberg, Sutts, Strosberg LLP,
(519) 561-6228; Michael J. Peerless, Siskinds LLP, (519) 660-7866; Bonnie A.
Tough, Tough and Podrebarac LLP, (416) 348-7501; Joel Rochon, Rochon Genova
LLP, (416) 363-1867 ext. 222