Foreign Vioxx Users Can't Sue Merck in U.S.

Former Vioxx users from 11 foreign countries will not get to sue manufacturer Merck & Co. in the United States, according to a federal judge in Louisiana.

The foreign plaintiffs allege the painkiller caused heart attacks and strokes and that Merck failed to properly warn them of those risks.

Merck pulled Vioxx from the market in September 2004 in the wake of mounting evidence linking the drug to cardiovascular dangers.

U.S. District Judge Eldon E. Fallon of the Eastern District of Louisiana is overseeing the more than 6,200 federal Vioxx-related cases against the company.

He said the foreign plaintiffs may be correct in arguing that U.S. court jurisdiction is proper since the global distribution of Vioxx started in Merck's New Jersey headquarters.

But he said Merck more correctly had argued that the cases involve the prescription and use of Vioxx in foreign lands, and the drug was distributed under each nation's regulatory and legal structure.

"The plaintiffs were injured abroad and the injury-causing conduct occurred abroad," Judge Fallon said in dismissing the foreign suits.

Merck filed its motion for dismissal last January based on inconvenient forum.

The company said the 11 suits at hand, involving Vioxx users from France, Italy, England, Australia, South Africa, Canada, Germany, Israel, New Zealand, the Netherlands, and Poland, should be dismissed and allowed to proceed abroad.

Merck maintained that, although Vioxx was first approved and marketed in the United States, the suits should be litigated in their nations of origin since the drug was sold overseas only after winning regulatory approval in those countries.

Merck said Vioxx was sold with stipulations by each country on how it could be labeled and what warnings were necessary.

The foreign plaintiffs not only bought and used Vioxx in their home nations, but also sustained their alleged injuries and received treatment there, the company said.

Judge Fallon said the foreign courts offer "adequate alternative forums," but he focused mainly on the judicial systems in France and Italy.

The judge noted that the medical records of each prospective plaintiff are located abroad and that American courts "do not have easy access to the foreign documents and witnesses" related to the claims.

In addition he said American courts "are likely to encounter many practical problems causing this litigation to be harder, slower and more expensive that it would be in Italy and France."

Aside from the prospect of clogging the U.S. Vioxx proceedings with foreign litigation, Judge Fallon said, the cases at hand raise genuine public interest factors suggesting that they belong in their respective homelands.

"The plaintiffs are Italian and French residents whose alleged injuries have been suffered and treated in Italy in France," the judge said. "Thus, these are localized Italian and French controversies in which Italy and France have strong interests in deciding at home."

Judge Fallon said that trying the plaintiffs' claims here "risks disrupting the judgments of Italian and French regulatory bodies by imposing an American jury's view of the appropriate standards of safety and labeling on companies marketing and selling drugs in Italy and France."

He also noted that American juries would have a difficult time deciding whether a certain foreign label or marketing scheme was adequate, especially if the label and marketing materials are in a foreign language.

Dismissal was contingent on Merck's agreement to accept any final judgment rendered in the cases by the foreign courts. The company also cannot try to prevent the plaintiffs from returning to the Louisiana court should the foreign courts decline jurisdiction.