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Thursday, June 13, 2024 | Back issues
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Buyers of Merck’s Vioxx Lose Bid for Class Status

(CN) - A California appeals court upheld a decision denying class-action status to a lawsuit demanding that Merck reimburse consumers who bought its higher-priced Vioxx painkiller instead of a safer, generic drug before Vioxx was pulled from the market due to health concerns.

The proposed class sought damages for anyone who bought Vioxx since its release in 1999 until it was pulled from the market in 2004, after a study revealed that the drug posed heart health risks.

In the wake of the damaging study, Merck launched a "campaign to downplay or outright ignore the cardiovascular risks of Vioxx," the ruling states.

The Second District Court of Appeal in Los Angeles affirmed the lower court's decertification of the class action, saying too many individual factors were involved.

"Some patients would still take Vioxx today if it were on the market; some physicians would still prescribe it regardless of risks," Justice Walter Croskey wrote.

The plaintiffs claimed that, had they known the risks of Vioxx, they would have instead bought naproxen, a safer generic pain reliever.

But the appeals court rejected naproxen as the basis for a common claim, explaining that not all Vioxx users switched to the generic naproxen after Vioxx was taken off the market; some went to other name-brand drugs.

"The failure of naproxen as a viable class-wide comparator ... defeats the claim for class-wide restitution," Croskey wrote.

Determining class damages - the difference in price between Vioxx and a generic version - requires a patient-specific inquiry, the appeals court ruled.

And the decision to prescribe Vioxx was an individual physician decision that varies from patient to patient, the judges added.

As a result, Croskey wrote, "the trial court properly concluded that restitution could not be calculated on a class-wide basis."

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