Firm loses bid to act in Ont.
February 4, 2006
Merchant Law Group has lost its bid to act as legal counsel
in a proposed Ontario class action
suit against Vioxx drug manufacturer Merck Frosst
for damages relating to the use of the painkiller.
decision does not seek to interfere with what has already happened in Saskatchewan,’’ said Saskatoon
lawyer Evatt Merchant, speaking on behalf of
Merchant Law Group.
The firm, Merchant said, is continuing with a similar class
action against Vioxx in Saskatchewan
and is currently awaiting a decision by Justice John Klebuc
on its Jan. 16 application for certification of the action.
On Friday, Ontario Superior Court Justice Warren Winkler
granted a national consortium of 19 law firms from across Canada, including
the firm of Scharfstein Gibbings, Walen and Fisher of Saskatoon, the right to act as legal
counsel in the proposed Vioxx national class action suit in that province.
Calgary lawyer Vaughn Marshall speaking on behalf of the
consortium said the national team will now move forward and apply to the
courts for certification of the class action on behalf of all persons in
Canada (other than Quebec), who used Vioxx, and all third parties who paid
for the drug.
“The effect of the decision is to bring a permanent halt to
numerous other proposed class actions that had been started after drug-maker
Merck issued an immediate worldwide withdrawal of the drug on Sept. 30,
2004,’’ said Marshall in a prepared statement.
“The withdrawal was due to the increased risk of
cardiovascular events associated with Vioxx, including heart attacks and
stroke,’’ the statement said.
Marshall said the national team was challenged by the
Merchant Law Group, which in a preliminary application requested the court
appoint it to have “carriage of the Ontario proceedings; allow its lawsuit to
continue at the same time as the one by the national team; or allow the
Regina-based firm to join the consortium. Winkler rejected all three
“Winkler recognized that the national team is comprised of
many pre-eminent class action counsel from across Canada and has extensive
experience at every court level involving certification of class
proceedings,’’ Marshall said, quoting from the decision.
The court also recognized the consortium’s combined
resources, financial and otherwise, and the breadth of them are significant,
he said, noting the consortium represents more than 6,600 potential clients
in this case.
Merchant said any of his firm’s clients in the Ontario action against Merck Frosst can opt in to be part of the Saskatchewan
lawsuit if it is certified as a class action. “We are certainly optimistic we
will be certified but you can never tell.’’
Members of the legal community will be watching the
developments in these two cases with a great deal of interest to see which
class action will proceed through the courts.