The Telegram (St. John's)

Metro/Provincial News, Wednesday, February 8, 2006, p. A3


Ontario ruling another step forward for Vioxx plaintiffs


A team of about 19 Canadian law firms representing patients who claim to have suffered harmful effects from the pain medication Vioxx, has been granted permission in the Ontario Superior Court to proceed with a class action against the drug's manufacturer.

The St. John's firm Aylward, Chislett and Whitten is a member of the team which will be seeking certification for a class of individuals in Canada, including their estates, with the exception of residents of Quebec.

A steering committee of seven lawyers has been appointed from this group of firms to appear as counsel in the proceedings.

In a recent decision, Justice Warren Winkler of the Ontario Superior Court considered two proposed class-action proceedings.

The case involving lawyers from across the country, including the St. John's law firm, is known as the Setterington action - a reference to one of the representative plaintiffs, Carol Setterington. The other proposed class proceeding was launched in Ontario by a Saskatchewan law firm, the Merchant Group.

Winkler concluded it would be more advantageous for the class to have the Setterington action proceed with its counsel group prosecuting that action.

"This would be consistent with the goals of the CPA (Class Proceedings Act) and, in consideration of the progress of the proceedings, does not in any way present any unfairness to the defendants," Winkler said in his ruling.

That legislation allows a court broad discretion to case manage such proceedings and determine what's termed a "carriage motion" to allow a class proceeding to ensure a "fair and expeditious determination," or stay any proceeding where appropriate.

Geoff Aylward of Aylward, Chislett and Whitten in St. John's represents plaintiff Clifford Smith. The defendants are three Merck pharmaceutical companies, Merck Frosst Canada Ltd., Merck Frosst Canada and Co. and Merck and Co. Inc.

Smith, who was taking Vioxx for arthritis symptoms for about four years, suffered a stroke in March 2004 before the drug was recalled in Canada because of possible side-effects, including strokes and heart attacks.

Since Smith's action was filed in court, Aylward said, his law firm has been contacted by more than 100 other people claiming to have been harmed by the same drug.

Aylward said his firm has been part of the national legal team from the beginning.

"The fact that Justice Winkler in Ontario considered that group was imminently qualified to proceed with the case does show that there's a very high level of regard shown by a very experienced class-action judge who, incidentally, would have been quite familiar with various members of the class-action team who were located in Ontario," Aylward said.

With similar cases pending across the country, further decisions are expected to be made in the near future on whether cases before the courts in this country will be certified as a class action and which law firms will represent Vioxx plaintiffs in each jurisdiction.

Winkler noted in his ruling that the cases before him were "but a fraction of the litigation that has been commenced elsewhere in Canada and in the United States related to the same subject matter."

Aylward said the Winkler ruling will have a significant effect on the way these cases play out across this country.

"The main step now and emphasis now, is really the issue of carriage, at least in Ontario, and where Ontario has what's considered to be its own national class-action legislation," he said.

"We're at a point now where we can hopefully move quickly on the carriage issues in any jurisdictions where that's important or significant and then proceed to the issue of having the action certified as a class action."

A meeting of the national class-action group is expected in the next three to four weeks, but Aylward said he would be hesitant to guess about court timelines at this stage.

Category: News
Uniform subject(s): Court and administration of justice; Laws and regulations
Length: Medium, 525 words

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