Vioxx Class Action Update – December 23, 2009

On July 28, 2008, Justice Cullity certified the Ontario Vioxx Class Action (the “Ontario Class Action”) as a national class action. However, since the certification Order was issued, Merck has continued to contest the lawsuit on numerous grounds. Plaintiffs’ Counsel have been working hard to stave of these attacks and continue to drive the lawsuit forward:

• On July 28, 2008, the same day that Justice Cullity certified this Ontario Class Action as a national class action (excluding Saskatchewan and Québec[1]), Justice Cullity also dismissed a motion by Merck seeking to stay this action (i.e. to temporarily or permanently halt the Ontario Class Action) on the basis of a Saskatchewan class action lawsuit (which lawsuit was also in respect of Vioxx use but differed significantly from the Ontario proceedings).
• In November 2008, counsel attended the Divisional Court as Merck sought Leave to Appeal (i.e. permission to appeal) both the certification decision and decision with respect to a stay of proceedings.
• On November 24, 2008, Justice Bellamy of the Divisional Court, denied leave to appeal the certification decision but granted leave to appeal with respect to the stay of proceedings.
• In February 2009, Counsel attended the Divisional Court to argue the appeal with respect to the stay of proceedings. The Divisional Court dismissed Merck’s appeal from the stay motion.
• Merck sought further leave to appeal to the Ontario Court of Appeal, but was refused. Merck then sought leave to appeal to the Supreme Court. On October 22, 2009, the Supreme Court refused to grant it permission to appeal.
• In June 2009, Merck brought a motion for leave to appeal the decision of Justice Bellamy (November 24, 2008) refusing it leave to appeal in respect of certification and, alternatively, asking Justice Bellamy to reconsider her earlier decision. Merck relied on the Saskatchewan Court of Appeal’s decision overturning the Saskatchewan certification, to argue that certification should also be overturned in Ontario as well. The parties appeared before Justice Bellamy on August 14, 2009.
• On December 7, 2009, Justice Bellamy refused to grant leave to appeal from her earlier decision (refusing leave to appeal) and (after reconsideration) refusing leave to appeal from certification.

As a result of the Supreme Court’s decisions on October 22, 2009 and Justice Bellamy’s refusal to grant leave to appeal and reconsideration of her December 7th, 2009 decision, the Ontario Class Action is the only certified national class action in Canada relating to Vioxx. It does not include persons resident in Québec or Saskatchewan.

The next steps include initiating a national notice program whereby class members are notified of certification and have the opportunity to opt out of the proceeding. Opting out of the class action is where a class member can choose not to participate in a class action. If a person opts out, she/he will not be bound by any settlement or judgment in the class action. However, if the case is successful, she/he will also not be entitled to any payment from a settlement or judgment that is reached.

Other steps include preparing for discovery, cross examinations and trial of the action. We appreciate your patience and understanding through this challenging proceeding.

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[1] At this time, separate class proceedings had been certified in each of these provinces. Today, only a separate Quebec class action remains. The Saskatchewan certification was overturned by the Saskatchewan Court of Appeal and leave to appeal this decision was recently denied by the Supreme Court of Canada.