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A New Jersey state intermediate appellate court has ruled that Vioxx users who claim that the drug increased their risk of heart ailments may pursue their class action against Merck & Co. Inc. for funding of a medical monitoring program. Sinclair v. Merck & Co. Inc., No. A-5661-04T5. The Appellate Division of New Jersey Superior Court, while expressing no opinion on the viability of the products liability claims, ruled that the trial judge had dismissed them too hastily, simply because the plaintiffs had not demonstrated harm. “We are cognizant of the [state] Product Liability Act’s requirement of ‘harm,’ which is defined in relevant part as ‘personal physical illness, injury or death,’ ” the judges wrote. “ Plaintiffs thus must be accorded an opportunity to demonstrate ‘harm’ cognizable under the [Act] before the portions of their suit premised on that Act can be dismissed as legally insufficient.” The judges remanded the case to Superior Court Judge Carol Higbee in Atlantic County for discovery and an evidentiary hearing. Granting Merck’s motion to dismiss, Higbee had concluded that the plaintiffs’ “pure” products liability cause of action differed significantly from toxic-tort cases in which a medical monitoring remedy had been recognized, and she doubted that the New Jersey Supreme Court “would extend medical monitoring to the proposed class in this particular action.” Higbee also found that manifest injury is a necessary prerequisite to the relief. The plaintiffs did not claim injuries but only sought money for electrocardiograms and follow-up consultations. Higbee, according to the appeals court, “intimated that medical monitoring could never be an appropriate remedy under the [Product Liability Act] because medical surveillance is not listed among the types of harm for which a product liability plaintiff may seek relief.” But the appeals court found that the relative paucity of New Jersey case law on medical monitoring did not foreclose the remedy in a products liability case without analysis of the scientific and other evidence relevant to the plaintiffs’ claims. The judges cited Ayers v. Township of Jackson, 106 N.J. 557 (1987), in which the state Supreme Court allowed medical monitoring in a suit over exposure to contaminated well water, and two cases that allowed the remedy for direct exposure to asbestos: Mauro v. Raymark Indus. Inc., 116 N.J. 126 (1989), and Theer v. Philip Carey Co., 133 N.J. 610 (1993). The panel said Higbee had interpreted those cases too narrowly. “The Court observed in Ayers that the availability of compensation for medical monitoring expense was dependent upon the significance and extent of plaintiffs’ exposure to the toxins, their toxicity, the seriousness of the diseases for which the exposed plaintiffs were at risk, the level of increased risk presented, and the value of early diagnosis,” the judges said. “We are unwilling to sacrifice a consideration of these additional factors to a bright-line test. The Court surely did not intend that ease of application supplant a measured consideration of the merits of a particular claim in light of relevant facts, science and policy.” The appeals decision comes as Higbee prepares for her fourth Vioxx trial, set to begin this week. Merck outside counsel Theodore Mayer of New York’s Hughes Hubbard & Reed said his client is planning an appeal.

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