Vioxx
March 11, 2008
A Communication to Class
Members from the National Counsel Team
In recent days and months,
there has been significant media coverage about developments in Vioxx
litigation, both in Canada and in the United States and you may be confused
about what these developments mean and how they affect your rights. This
update aims to provide you with some explanations and assistance in
understanding the current situation with Vioxx litigation in Canada.
In November, 2007, Merck &
Co. announced that it had agreed conditionally to settle a significant
portion of the Vioxx claims in the U.S., setting aside approximately $4.85
billion to do so. Even though those cases deal with the exact same drug as
the Canadian litigation, Merck has, to date, made no effort to establish a
parallel settlement for Canadian users of Vioxx and Merck Frosst Canada Ltd.
has publicly and repeatedly stated its intention to vigorously defend all
Vioxx lawsuits in Canada.
The defendants have raised various procedural
hurdles which have slowed the progress of the litigation. As a result, all
Vioxx lawsuits in Canada remain in various stages of litigation.
In Ontario, there is a
proposed national class action which has been brought on behalf of all
Canadian users of Vioxx and their family members. A consortium of 19
eminent law firms from all across Canada has come together to collectively
represent Canadians in this lawsuit and advance the strongest case
possible. At this stage, all Canadians who took Vioxx (and their family
members) are covered by this lawsuit, whether they take any active steps to
contact counsel or not.
The Ontario action was
originally scheduled to proceed to its certification hearing in October,
2007. This hearing is a mandatory step in the litigation process and
decides whether or not the action should be allowed to proceed as a single
class action lawsuit, for the benefit of all class members. Shortly before
the Ontario hearing was scheduled to proceed, the defendants sought and were
granted an adjournment in order to conduct cross-examinations of various
witnesses.
The rescheduled hearing was
set to commence on February 13, 2008, but only several days before the
certification hearing, the defendants sought to have Mr. Allan Rock, Q.C.,
the firm of Sutts, Strosberg LLP and the National Counsel Team
disqualified as a result of Mr. Rock’s previous political career, during
which he served, among other things, as the federal Minister of Health. As
a result of this last minute motion, the certification hearing was, once
again, adjourned.
Mr. Justice Maurice Cullity
of the Ontario Superior Court of Justice heard the removal motion on
February 15, 2008. In a decision released on February 26, 2008, his Honour
decided that Mr. Rock would have no further involvement in this case;
however, Sutts, Strosberg LLP and the rest of the National Counsel
Team remain as counsel in this action and strongly believe that the
certification hearing should be rescheduled as soon as possible, and
hopefully no later than April, 2008.
On November 9, 2006, Justice
Andre Denis of the Quebec Superior Court authorized a class action for
Quebec residents who suffered damages caused by the use of Vioxx. That case
pertains to residents of Quebec only and is also continuing to work its way
through the legal system.
In further recent Canadian
Vioxx news, a separate case launched in Saskatchewan was certified as a
class action in a decision released on February 20, 2008. We welcome the
decision of Mr. Justice John Klebuc in determining that litigation related
to Vioxx is an appropriate case for certification; however, we note also
that Merck has already indicated its intention to appeal that decision which
will likely stay the certification decision and any related certification
order. Practically speaking, this means that this case will be on hold
until Merck’s appeal rights are exhausted.
We should also note that the
decision allows Canadians who do not reside in Saskatchewan to participate
in the class action on an “opt in” basis. If you do not reside in
Saskatchewan but choose to “opt in” to this action, you may be precluded
from participating in the Ontario action or be represented by the National
Counsel Team. It will be very important to consider how your rights will be
affected before deciding whether or not to opt in to the Saskatchewan class
action. Again, in view of Merck’s intention to appeal Mr. Justice Klebuk’s
decision, it is likely that this aspect of the case will be on hold pending
the appeals process as well.
Because Merck has not, to
date, indicated any willingness to make any settlement proposal for Canadian
Vioxx users, in spite of their multi-billion dollar settlement proposal in
the US, the current strategy of the National Counsel Team is to drive the
Ontario litigation forward and deal with the case on the merits. The time
for class members to make any necessary decisions about how to advance their
individual claims will arise after these various proceedings have been
finally determined following a common issues trial. It is unfortunately not
possible to predict with certainty how long this process may take; however
updates will be provided as they become available.
As members of the National
Counsel Team, we wish to express our appreciation to all class members for
their patience to date with this complex litigation and we wish to assure
you all that everything is being done to ensure that you receive the justice
you so rightly deserve.
March 16, 2005
Since we began the lawsuit,
we have been contacted by over 1100 individuals who have requested that we
include them in our database. If you are not yet in our database and would
like to be included, please click here. Our database
registration process now includes a questionnaire and even if you have
already registered, please click
here to complete the questionnaire.
Other class action lawsuits
regarding Vioxx have been started in Provinces across Canada since we filed
our action in British Columbia. It is our intention to work with the other
involved law firms to produce a solution for the benefit of all Vioxx users
in Canada.
The lawsuit filed by Poyner
Baxter covers residents of British Columbia only. If you are a resident of
another province or territory, please contact our co-counsel as follows:
If you live in Ontario, please contact our co-counsel, Siskinds in Ontario at
www.classaction.ca or by telephone at 1-800-461-6166.
If you live in Quebec, please contact our co-counsel, Desmeules, Eizenga, Strickland, Wright at
www.classaction.ca or
by telephone at 418-694-2009
They will be pleased to assist you.
Many people have asked us
how long it will take to achieve satisfaction for class members. There is,
unfortunately, no way to predict the time frame. Many class actions take
years to resolve and, given the complexity of the issues in this case, it is
unlikely that this matter will be any different. It may appear that nothing
is happening, but be assured that we are continuing to work diligently to
move this case forward.
In order to assist in this
litigation, we request that you click
here and complete our
questionnaire if you have not already done so. The
information you provide will be kept confidential and will not be released
to the Defendants or any other person without your consent.
Please continue to monitor
our website. We will update it as additional information becomes
available.
We suggest that you obtain
and keep all your medical records related to your Vioxx experience in a safe
place. Do not forward them to our office.
October 4, 2004
Poyner Baxter has filed a
class action lawsuit against Merck Frosst Canada Ltd., Merck Frosst Canada &
Co., and Merck & Co. Inc. Merck manufactured and distributed a drug known
as Vioxx. Vioxx is a
nonsteroidal, anti-inflammatory drug which is
prescribed to relieve pain and swelling.
The lawsuit alleges that Vioxx
has been associated with an increased risk of serious, adverse
cardiovascular complications; that the Defendants
knew or ought to have known at least as early as 2000 that there was a
significant risk of serious adverse cardiovascular complications from
ingesting Vioxx; and that the Defendants failed to
apprise the Plaintiff or his physicians of that risk.
To view the press release regarding Vioxx,
click here.
To view the complete Statement of Claim, click
here.
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