VIOXX was withdrawn from the worldwide market September 30, 2004, following reports that its users faced a significantly higher risk of cardiovascular complications, including heart attack, stroke, angina, blood clots and congestive heart failure.
In October 2004, a number class action lawsuits were commenced against Merck Frosst Canada Ltd., Merck Frosst Canada & Co., and Merck & Co., Inc.. ("Merck") relating to Vioxx.
On February 2, 2006, The Honourable Mr. Justice Winkler granted carriage of this lawsuit to the Vioxx Litigation Group, which group is comprised of nineteen law firms across Canada. A "Steering Committee" of four counsel was appointed from this group of firms to direct the conduct of the lawsuit and to appear as counsel in the proceedings. A copy of Mr. Justice Winkler's Reasons for Decision may accessed at: Vioxx Carriage Reasons for Decision.
On March 8, 2006, Counsel attended before Mr. Justice Winkler to set a schedule for certification. Certification is where a judge determines whether it is appropriate to treat the action as a class action.
At Merck's request and subsequently as a result of a pre-certification motion brought by Merck, the certification hearing, originally scheduled to occur in October 2007, was delayed until June 2008. During the week of June 24, 2008, Counsel attended before Mr. Justice Cullity to argue for certification. We are pleased to advise that the action was certified on July 28, 2008. Vioxx Reasons for Certification
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 the same day that Justice Cullity certified this Ontario action as a national class action (excluding Saskatchewan and Quebec1) in July 2008, Justice Cullity also dismissed a motion by Merck seeking to stay this action (i.e. to temporarily or permanently halt this 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 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. Reasons On Leave to Appeal, Nov 24, 2008
- 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. Judgement Reasons
- Merck sought further leave to appeal (i.e. permission to appeal) to the Ontario Court of Appeal, but was refused. Merck then sought leave to appeal to the Supreme Court. The Supreme Court refused to grant it permission to appeal on October 22, 2009.
- 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, In December 2009, Justice Bellamy released her decision which ultimately denied the defendant's motion and put an end to the question of certification. Vioxx Decision
As a result of the recent decisions of the Ontario Divisional Court in December 2009 and that of Supreme Court of Canada, in October 2009, this Ontario class action is the only certified national class action in Canada relating to Vioxx. It does not include persons resident in Quebec or Saskatchewan.
We have now entered the phase in the proceedings where Merck is required to produce all relevant documents. We will continue to provide updates on this process as they become available.
Preserve Your Claim
Given that Merck has fought long and hard through the early certification-stage of this action, we anticipate many more battles in future, and unfortunately, more time to pass before coming to a resolution of this matter. In order to ensure that you have the proper documentary evidence to support your claim, if this matter is successful, you should ensure your medical records (or the medical records of the estate you represent) are intact and available. Doctors and Pharmacies are only required by law to keep patient records for a limited amount of time. In Ontario, for example, doctors are required to keep records for approximately ten years and pharmacies are required to keep records for only six years. You would be well advised to inform your healthcare providers of your need for these records in the future and/or obtain copies.