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N.J. High Court Voids Vioxx Medical Monitoring Class

The New Jersey Supreme Court has ruled that Merck & Co. is not required to finance a medical monitoring program for former Vioxx users who do not claim injury from taking the recalled pain drug.

Restoring a trial court ruling that rejected certification of a medical monitoring class under the New Jersey Products Liability Act, the high court said the proceeding could not advance because the plaintiffs allege no "manifest injury."

The 5-1 Supreme Court ruling reverses a 2007 decision in which a state appellate panel said rejection of the medical monitoring class would be premature.

The high court said it has long interpreted the PLA as requiring plaintiffs in product liability cases to allege a personal physical injury, and "nothing in the legislative history of the PLA suggests that the Legislature intended to eliminate that physical component."

The ruling is unwelcome news for the plaintiffs, already barred from a pending $4.9 billion national settlement of thousands of federal court Vioxx liability suits because they claim no physical injury.

"Here, it is not disputed that plaintiffs do not allege a personal physical injury," Justice John E. Wallace Jr. wrote for the high court majority. "Thus, we conclude that because plaintiffs cannot satisfy the definition of harm to state a product liability claim under the PLA, the plaintiffs' claim for medical monitoring damages must fail."

The justices also said the plaintiffs cannot attempt to simultaneously plead their claims against Merck under the New Jersey Consumer Fraud Act because their allegations stem from harm caused by a product.

"The heart of plaintiffs' case is the potential for harm caused by Merck's drug," the high court wrote. "It is obviously a product liability claim."

One justice did not participate in the decision while another offered a lone dissent in which she said the plaintiffs' class claims could proceed under common law even if they do not satisfy the PLA's requirements.

Justice Virginia Long said that aside from being able to pursue their claims against Merck under common law, the plaintiffs still could have a valid PLA claim against the drugmaker if, as she believes, "the majority is incorrect in its analysis of what constitutes harm under the PLA."

Merck attorney Theodore Mayer of Hughes, Hubbard & Reed hailed the decision.

He said in a statement that the plaintiffs had "sought to recover from Merck even though Vioxx has been off the market for almost four years and they do not claim that ever injured them."

Plaintiffs Phyllis Sinclair and Joseph Murray launched the class action against Merck, certain drug distributors and marketing partners in 2004.

They sought damages under various liability theories for people who used Vioxx at any time between its 1999 introduction and September 2004, when Merck pulled the drug from the market amid reports that it increased heart attack and stroke risk.

In a 2005 amended complaint the class was redefined and limited to people who took Vioxx for at least six months during the same period but who claim no personal injuries.

In the revised complaint Robbie L. Traylor replaced Sinclair as one of the lead plaintiffs.

In May 2005 Judge Carol Higbee of the Atlantic County Superior Court rejected the class, saying that while New Jersey courts have recognized medical monitoring claims in cases involving asbestos exposure and groundwater contamination, she was unsure if the state Supreme Court would accept such claims here without proof of each plaintiff's "presently cognizable injury."

The Superior Court Appellate Division reversed the decision in January 2007, saying the plaintiffs deserved a chance to establish the existence of a "legally cognizable claim."

The high court reinstated Judge Higbee's ruling June 4.

To comment, ask questions or contribute articles, contact West.Andrews.Editor@Thomson.com.

John Beisner and Jonathan Hacker of O'Melveny & Myers in Washington also represented Merck.The plaintiffs are represented by Elizabeth Cabraser of Leiff Cabraser Heimann & Bernstein in San Francisco and Esther Berezofsky of Williams Cuker & Berezofsky in Cherry Hill, N.J.