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A New Jersey appeals panel has handed Merck & Co. a victory in the mass litigation over its painkiller Vioxx by barring 98 English and Welsh users of the drug from suing in the state’s courts. The plaintiffs wanted to take advantage of New Jersey’s plaintiff-friendly laws and fee-switching rules that do not exist in the United Kingdom, the other possible forum. But even if U.K. remedies are not as attractive, they are adequate and New Jersey trials would be less convenient for the state’s courts and the litigants, the appeals court ruled July 23 in In re Vioxx Litigation. “The financial challenges of bringing mass tort litigation in the U.K. are not so insurmountable as to render that forum either inadequate or unavailable,” said Appellate Division Judges Edith Payne, Harvey Weissbard and Howard Kestin. As for the legal fees, “we do not regard the claimed inadequacies of one country’s system of funding suits and allocating costs as a ticket to relief elsewhere,” they said. The ruling is important because British law permits recovery of damages caused by defective products but not punitive damages, and it has no equivalent to New Jersey’s Consumer Fraud Act, which provides for treble damages and fee shifting. Those causes have been pleaded successfully in U.S. Vioxx cases. In June, for example, Atlantic County Superior Court Judge Carol Higbee found Merck liable for $4.4 million in fees in two U.S. plaintiffs’ cases that included fraud and punitive damage claims impermissible in the United Kingdom. A large portion of that fee went to a plaintiff who prevailed only on a consumer fraud award of $45 trebled to $135. The plaintiffs’ suits allege that Vioxx caused heart attacks and strokes and that Merck failed to warn users of the dangers. The Whitehouse Station, N.J., company has won eight cases tried by Higbee, lost six and had a hung jury in three, and three of Merck’s losses included awards of damages for consumer fraud, according to a company spokeswoman. The appeals court reached the same result as U.S. District Judge Eldon Fallon in New Orleans last September in the cases of plaintiffs from 11 countries. Fallon is supervising 8,000 cases filed in federal courts around the country. The July 23 decision affirmed Higbee’s dismissal of the United Kingdom cases and endorsed her interpretation of the law of forum non conveniens. According to a plaintiff’s expert, the United Kingdom has no analog to the fraud act, no recognition of claims for loss of consortium and perhaps no basis for breach of express warranty claims. The plaintiffs also argued that the English system, in which losing litigants pay the winners’ legal costs, would deter plaintiffs from vindicating claims. But under federal and state precedents, foreign litigants seeking a U.S. forum can’t prevail by merely arguing that they can do better in the United States than in the foreign country. “As long as some cause of action is still available to plaintiffs, the unavailability of a specific claim in the alternate forum cannot be said to render that forum inadequate,” Payne wrote for the panel. As for the difficulty caused by the loser-pays fee system, she noted there is some wiggle room in English law when the winning party has a commanding financial position. “Thus success on the merits no longer guarantees full cost reimbursement,” Payne said. Finally, she wrote, it would be more convenient for the parties to be heard in the United Kingdom, where Vioxx was marketed and where the documents on both sides are filed, and their cases could be heard more quickly than they would in New Jersey, where 16,000 cases are pending before Higbee. Plaintiffs lawyer Michael Galpern of the Locks Law Firm in Philadelphia said he may seek review in the state Supreme Court. He said decisions have not been made on the fate of about 120 plaintiffs from Canada, Australia, New Zealand, Israel and Canada who want their cases heard in New Jersey. “We believe today’s decision took an unrealistic view of English law, and entirely disregarded the plain fact that the United Kingdom’s loser-pays system means that pensioners must now run the risk that Merck may take their house if they lose this case.” “Ironically, Merck, a multibillion-dollar New Jersey corporation, has taken the position that New Jersey is an inconvenient place to defend itself. Today’s decision strips away an important layer of protection to U.K. plaintiffs. The effect of today’s ruling will be to make it much cheaper and easier for American companies to injure and kill non-U.S. residents.” Defense lawyer Theodore Mayer of Hughes Hubbard & Reed said, “We feel this is the correct ruling. As we argued, it makes little sense to try these cases here in New Jersey.” “The United Kingdom has a perfectly appropriate judicial system,” Mayer said. “In fact, the United Kingdom courts are more appropriate than New Jersey because the plaintiffs live there, they were prescribed the medicine there, they ingested it there, they were treated there, their medical records are there, and their physicians live there.” This article originally appeared in the New Jersey Law Journal, a publication of ALM.

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