Vioxx Litigation: Individual and Class Actions

Brief Background on Vioxx and Related Health Issues

In 1999, FDA-approved Vioxx was launched into the U.S. prescription drug market as a beneficial and innovative new anti-inflammatory and pain killing drug. On September 30, 2004, Vioxx manufacturer, Merck, voluntarily pulled the drug from the market. Merck cited newly discovered risks of heart attack and stroke associated with taking Vioxx as the reason for the recall. Controversy ensued as information began to surface indicating that Merck and the FDA knew of a possible link between Vioxx and cardiovascular (CV) problems as early as 2000, yet Vioxx remained on the market for nearly five years.

Vioxx Lawsuits: Individual and Class Actions

Lawsuits against Merck for injuries sustained while taking the drug Vioxx have been filed worldwide. In the U.S., attorneys and law firms are representing Vioxx plaintiffs in individual and group lawsuits as well as in class action suits filed in state and federal courts. Generally, all lawsuits are being brought against Merck under theories of strict products liability for a defective drug, breach of warranty, negligence and/or misrepresentation. Plaintiffs have suffered many injuries while taking Vioxx, including the following:

• Heart attack;
• Blood clotting;
• Stroke;
• Shortness of breath;
• Chest pains;
• Confusion and impaired thinking;
• Loss of appetite;
• Rapid heart beat;
• Build up of bodily tissue fluid; and/or
• Tiredness/fatigue.

Whether an injured plaintiff chooses to file an individual or group (joinder) claim or a class action depends on their case and the attorney or firm they choose to represent them. There are advantages and disadvantages to both types of lawsuits.

Individual Actions

Sometimes plaintiffs that have been injured in a mass tort type case wish to pursue their own individual lawsuit against the particular defendant. An injured party who chooses to file an individual lawsuit generally receives more individualized attention to their case, maintains more autonomy or control over some of the proceedings and is able to participate more in their lawsuit. However, individual lawsuits can be more expensive for the filing party or may be impractical if their case is not as strong individually as it would be if it were to be combined with those of similarly situated plaintiffs.

Class Actions

A class action may also be appropriate for a case involving mass personal injury caused by an allegedly defective drug. However, there are special considerations in class actions. A judge must "certify" a group of plaintiffs as a class based on certain criteria. In a federal case, named representatives may sue on behalf of a class of plaintiffs if:

1. The class is so numerous that joinder of all members is impracticable;
2. There are questions of law or fact common to the class;
3. The named parties' interests are typical of the class;
4. The named representatives will ensure the fair and adequate representation of the interests of absent members; and
5. The questions of fact or law common to class members predominate over individual issues and a class action is the superior method of adjudication.

Once the class is certified, the court will define class claims, issues or defenses and appoint counsel who will fairly and adequately represent class interests. Notice will be given to all class members about a pending class action and members may "opt out" of the case. A judgment in a class action binds all members of the class who did not opt out. Also, notice of a settlement will be given to the extent that it binds the class.

Joining a class action is less expensive and requires less individual time than filing suit individually. However, members of the class have less autonomy over the case. Also, any damages recovered are divided among all class members, and individuals may not receive a large sum, depending on the size of the award and the defendant's ability to pay.