Merck’s Super Aspirin Was Vioxx
This is an April 20, 2013 update of information about court approval of the settlement of the Canadian Vioxx class action negotiated with Merck by the Canadian class action law firms and announced over a year ago in January 2012. The settlement was conditional on court approval after considering the fairness of the terms of a settlement. Fairness hearings have been held in Ontario for all of Canada, except Saskatchewan (which held a hearing for Saskatchewan July 25) and Quebec whose hearing was on September 7th. Final court approval of the settlement was given by each court. There was not enough of a case against the settlement brought to the court to form a basis for turning down the settlement. The three judges consulted each other to ensure consistency in their decisions and reasons.
The remainder of this post has only been partially updated to note the completion of settlement approval. For the latest information go to our new web page after reading this.
Our law firm, which represents over 300 Vioxx claimants, is based in Ontario and Murray Miskin attended the Ontario hearing only. The fairness hearing in Ontario was held at the London courthouse 80 Dundas Street on Tuesday, July 17th at 10 am before madam justice Leitch of the Ontario superior court. Her honor indicated she will prepare a decision to be released after consultation with the Saskatchewan and Quebec judges hearing the same motion. At the hearing, submissions were made by Michael Peerless of the Siskinds Law firm on behalf of the class action plaintiffs and by Katherine Beagan flood on behalf of Merck with two people speaking against the settlement including Gary Roberts the husband of one of our clients who is not entitled to compensation under the settlement. The other person speaking was Mrs. Dufour who stopped using Vioxx a few months before her heart attack and who would not qualify under the settlement. Murray Miskin who came to observe the proceedings was asked by the court to speak and did so on behalf of his clients some of who support and some of whom oppose the settlement.
The Ontario hearing applied to all claims except those in Quebec and Saskatchewan. Orders have been made in all provinces setting out the approval process requirements. The following is a link to the Ontario court order setting out information about the settlement and the approval process: Ontario court.
The settlement was announced in January 2012 with much attention by the media but there has been almost none since then. Notices were posted in newspapers nationally about the court dates on June 9, 2012. Everyone who is affected had a right to be heard on this and the settlement is only to be approved by the court if it is believed to be in the best interests of Vioxx victims. There has been no media coverage of the settlement approval process and this website has been the only source of information on what has happened and what has happened until now. There are now official notices and more information at vioxxclassaction.ca
The following information about Vioxx and the settlement was published in this website’s post before the court approval dates:
Merck’s once-popular anti-inflammatory drug Vioxx turned out to be a deadly drug for many people. It was voluntarily withdrawn and then recalled in 2004 with numerous lawsuits that followed, including, in Canada, a Class Action claim which took precedence over possible individual claims under Canadian law. Merck fought claims worldwide settling in the USA only after a few years. Our firm brought some claims in the New Jersey court working with US lawyers on the cases. When the US case settled in November 2007 it was a term of settlement that all foreign claimants’ cases had to be dropped by the US lawyers. At that point, the judge handling the case had already ruled that British claimants should proceed in the court of their own country and we were expecting a similar decision for Canadians. We then had no choice but to wait for the Canadian class action which had been delayed by arguments between lawyers over which law firm would manage the case and then by Merck’s procedural delays and appeals. When the Canadian case was finally certified to proceed with no further right to appeal some of our clients with stronger cases chose to opt-out of the class action so they could make individual claims hoping for better settlements.
In Australia last year Merck did well after a major test case trial which found liability only in heart attack situations and specifically concluded after much expert evidence that there is no proof that Vioxx causes strokes or other cardiovascular problems. The Judge ordered compensation in a heart attack case but that was overturned on appeal by Merck. The negative finding in stroke cases was not even appealed as the evidence was clearly not enough for proof. It was after the Australian case victory that Merck was ready to negotiate with the Canadian Class Action lawyers. The negotiations conducted on behalf of all persons in Canada claiming, resulted in a settlement agreement announced on January 19, 2012. There is a national Vioxx settlement in Canada. The amount of the settlement is proportionately much less than the US settlement on a per capita basis. It provides compensation up to $100,000 in heart attack and sudden cardiac death cases and pays an amount capped at $5,000 in ischemic stroke cases. Stroke compensation does not include payment for Transient Ischemic Attacks (TIA). Nothing is paid in the settlement for hemorrhagic strokes or other conditions. This settlement was negotiated with Merck by the Class Action lawyers, not the law firms (like ours) representing individual clients. When a settlement agreement was reached by the negotiators it asked for persons who had opted out of the Class Action to agree to opt back in and accept the settlement. This happened as all the clients now represented by Canadian lawyers who had opted out agreed to accept the settlement. Our opted-out clients were not prepared to take the high risk of proceeding with their own individual cases in court. Those who had not opted out of the Class Action were not given a choice. Our firm acts for a large number of individual clients, and we are determining how each of our clients will benefit (or not) from the settlement). It is a complex settlement factoring dates of use in relation to the cardiac event and with numerous reductions based on risk factors. We have written letters to most of our clients who do not qualify for compensation under the settlement to advise them of their rights. We have written to others where we need additional information to determine if they will be compensated and for some, we are still trying to determine if there is eligibility. We are preparing and sending out actual claim forms to our clients and family members for signature. We are now submitting claims where the documentation is complete with forms all signed. We have many clients who clearly benefit from the settlement and we are documenting their claims for compensation. For people who are not represented by lawyers yet, we are still on request, reviewing situations and accepting retainers in cases that qualify for compensation.
The following paragraphs have not been updated since settlement approval was given:
We have heard from a number of angry clients and others who will receive little or no compensation. We also have clients who are happy with the settlement and that they will be compensated finally even where the compensation is not believed to be adequate. If you are not happy with the settlement do speak out and the court will consider what you have to say. Our firm is not in a position to take a position for or against the settlement as we have many clients who have conflicting views and we cannot represent some to the detriment of others. We cannot say that we are happy with this settlement. It is not as good a settlement like the one for users of Celebrex or Bextra who suffered similar harm. We encourage our unhappy clients to get independent advice and legal representation if they wish to oppose the settlement. To be fair to the class action lawyers it is their view that this is a good settlement which was the best that could be done given the nature of the case and the impact of the Australian court decision. Had Merck been willing to negotiate earlier there is no doubt that the settlement would be better. In the US the pressure of numerous cases being reached for trial put pressure on Merck to settle much sooner and for a lot more money for each claim.
Further to the Australian trial decision and appeal, the Australian High Court in May 2012 denied an attempt to appeal the dismissal of the claims and so that is the end for the Australian Vioxx case. Australia’s laws are similar to Canada’s and the Australian decision has a major legal impact on us. The decision gives much ammunition to the class action lawyers who argue that the Canadian settlement is a “very good one”. All of this will be considered by the Ontario and Quebec courts when the court approval application is heard. We do expect approval to be given to the settlement and after that claims will be processed. It is likely that the first settlement money will be received by claimants in early 2013.
Several months ago the NBC TV show Dateline NBC taped an episode including an interview with Pam Cottingham, one of our Vioxx clients, who suffered a serious stroke at age 43 following Vioxx use. That show was aired on Sunday, March 4, 2012, and shows how a drug like Vioxx can still be approved. You can see the entire show below in six parts with the portion dealing with our client and the Vioxx settlement in Canada in Part One.
We continue to act for everyone in our existing group of clients to get compensation but we are only taking on new cases which qualify under the Canadian settlement.