STATE COURT ORDER COULD HELP MERCK CHALLENGE VIOXX SUITS

A recent state supreme court decision to review the validity of a class action claim concerning Merck's drug Vioxx could raise the bar for a national case against the company, an industry attorney says.

The Supreme Court of New Jersey decided late last week to hear Merck's appeal of the New Jersey Superior Court's decision that a national class action claim could be based on whether parties qualified under the standards of a single state's consumer fraud law. Usually courts certify a class action suit on a state-by-state basis, deciding whether the residents of that state qualify under their state's law. The New Jersey Appellate Division upheld the Superior Court's finding in a March 31 decision.

Merck voluntarily pulled its arthritis drug Vioxx (rofecoxib) from the market in 2004 after it was linked to heart attacks and strokes. The company now faces thousands of product liability suits stemming from this drug.

The Superior Court's decision lowered the bar for certifying a national class action suit, Jane Thorpe, a pharmaceutical defense attorney with the firm Alston & Bird, said. If the state high court overturns the decision, it would make it more difficult for plaintiffs to establish a national class action claim against the company.

This decision is "of critical importance to Merck" and will be watched closely by the rest of the industry, Thorpe said. Although the decision would only be a precedent in New Jersey, it would provide "good authority" for Merck and other companies to challenge future class action suits.

Merck's attorneys did not respond to a request for comment.