A Communication to Class Members from the National Counsel Team:
In recent days and months, there has been significant media coverage about developments in Vioxx litigation, both in Canada and in the United States and you may be confused about what these developments mean and how they affect your rights. This update aims to provide you with some explanations and assistance in understanding the current situation with Vioxx litigation in Canada.
In November, 2007, Merck & Co. announced that it had agreed conditionally to settle a significant portion of the Vioxx claims in the U.S., setting aside approximately $4.85 billion to do so. Even though those cases deal with the exact same drug as the Canadian litigation, Merck has, to date, made no effort to establish a parallel settlement for Canadian users of Vioxx and Merck Frosst Canada Ltd. has publicly and repeatedly stated its intention to vigorously defend all Vioxx lawsuits in Canada.
The defendants have raised various procedural hurdles which have slowed the progress of the litigation. As a result, all Vioxx lawsuits in Canada remain in various stages of litigation. In Ontario, there is a proposed national class action which has been brought on behalf of all Canadian users of Vioxx and their family members. A consortium of 19 eminent law firms from all across Canada has come together to collectively represent Canadians in this lawsuit and advance the strongest case possible. At this stage, all Canadians who took Vioxx (and their family members) are covered by this lawsuit, whether they take any active steps to contact counsel or not.
The Ontario action was originally scheduled to proceed to its certification hearing in October, 2007. This hearing is a mandatory step in the litigation process and decides whether or not the action should be allowed to proceed as a single class action lawsuit, for the benefit of all class members. Shortly before the Ontario hearing was scheduled to proceed, the defendants sought and were granted an adjournment in order to conduct cross-examinations of various witnesses. The rescheduled hearing was set to commence on February 13, 2008, but only several days before the certification hearing, the defendants sought to have Mr. Allan Rock, Q.C., the firm of Sutts, Strosberg LLP and the National Counsel Team disqualified as a result of Mr. Rock’s previous political career, during which he served, among other things, as the federal Minister of Health. As a result of this last minute motion, the certification hearing was, once again, adjourned.
Mr. Justice Maurice Cullity of the Ontario Superior Court of Justice heard the removal motion on February 15, 2008. In a decision released on February 26, 2008, his Honour decided that Mr. Rock would have no further involvement in this case; however, Sutts, Strosberg LLP and the rest of the National Counsel Team remain as counsel in this action and strongly believe that the certification hearing should be rescheduled as soon as possible, and hopefully no later than April, 2008.
On November 9, 2006, Justice Andre Denis of the Quebec Superior Court authorized a class action for Quebec residents who suffered damages caused by the use of Vioxx. That case pertains to residents of Quebec only and is also continuing to work its way through the legal system.
In further recent Canadian Vioxx news, a separate case launched in Saskatchewan was certified as a class action in a decision released on February 20, 2008. We welcome the decision of Mr. Justice John Klebuc in determining that litigation related to Vioxx is an appropriate case for certification; however, we note also that Merck has already indicated its intention to appeal that decision which will likely stay the certification decision and any related certification order. Practically speaking, this means that this case will be on hold until Merck’s appeal rights are exhausted.
We should also note that the decision allows Canadians who do not reside in Saskatchewan to participate in the class action on an “opt in” basis. If you do not reside in Saskatchewan but choose to “opt in” to this action, you may be precluded from participating in the Ontario action or be represented by the National Counsel Team. It will be very important to consider how your rights will be affected before deciding whether or not to opt in to the Saskatchewan class action. Again, in view of Merck’s intention to appeal Mr. Justice Klebuk’s decision, it is likely that this aspect of the case will be on hold pending the appeals process as well.
Because Merck has not, to date, indicated any willingness to make any settlement proposal for Canadian Vioxx users, in spite of their multi-billion dollar settlement proposal in the US, the current strategy of the National Counsel Team is to drive the Ontario litigation forward and deal with the case on the merits. The time for class members to make any necessary decisions about how to advance their individual claims will arise after these various proceedings have been finally determined following a common issues trial. It is unfortunately not possible to predict with certainty how long this process may take; however updates will be provided as they become available.
As members of the National Counsel Team, we wish to express our appreciation to all class members for their patience to date with this complex litigation and we wish to assure you all that everything is being done to ensure that you receive the justice you so rightly deserve.
