Court of Appeal for Saskatchewan allows Merck's appeal

Mar 30 2009

Merck Frosst Canada Ltd. has learned that the Court of Appeal for Saskatchewan has issued a decision allowing Merck's appeal and quashing an order of the Court of Queen's Bench that had certified a class proceeding on behalf of Canadian residents of all provinces except Quebec who purchased or ingested VIOXX.

The three-Justice panel of the Court of Appeal concluded unanimously that the lower court had erred in finding that the plaintiffs had established an identifiable class, in defining common issues, and in holding that a class action represents the preferable procedure for resolving the claims. In her opinion for the Court, Madam Justice Smith concluded, "It is my view that this action vastly over-reaches what is reasonably manageable in a class action in a fair and efficient way." "In short," wrote Madam Justice Smith, "the diversity of claims sought to be asserted, combined with the lack of clarity of what facts are alleged in relation to each, present insurmountable challenges, in my view, to the identification of issues which are common to all claims and therefore to all members of the class." "We are pleased that the Court of Appeal agreed with us that the court below erred in certifying this action as a class," said Maurice Laprairie, Q.C. of MacPherson, Leslie & Tyerman LLP, Saskatchewan counsel for Merck Frosst and Merck & Co., Inc. "We argued against the creation, and later expansion, of a class, because each plaintiff's case is unique and depends on an individual set of facts." "The Company intends to defend these cases vigorously over the coming years, and we are confident that the courts will decide these cases based on sound science," said Neil Finkelstein, of Blake, Cassels & Graydon LLP, Canadian national counsel for Merck Frosst and Merck & Co., Inc. The evidence will show that Merck acted responsibly - from researching VIOXX prior to approval in clinical trials involving almost 10,000 patients - to monitoring the medicine while it was on the market - to voluntarily withdrawing the medicine in September 2004.