Vioxx
Settlement Agreement Reached
We are pleased to announce that a settlement has been reached in this action: Settlement Agreement
The total amount of the settlement is for up to $36,881,250.00 depending on the number of approved claims and includes payments to provincial health insurers, payments towards legal costs, and payments for notice and claims administration. If the settlement is approved by the courts, individuals (or their estates) may be eligible to receive payment if they took Vioxx and then experienced a heart attack (myocardial infarction), sudden cardiac death or ischemic stroke. Spouses and children of eligible claimants may also be eligible for payment.
The next step is to seek court approval. A notice with details of the settlement approval hearings will be published in the near future. If the settlement is approved by the courts, a further notice will be published which will explain the steps for making a claim.
If you or someone you know used Vioxx and then experienced a myocardial infarction, sudden cardiac death or ischemic stroke, please contact us as soon as possible so we can determine if you are eligible for payment. If the settlement is approved by the courts, there will be a limited time to make a claim and it can take a significant amount of time to collect all of the documents necessary to prove your claim.
Date to Opt-out Passed
The date to opt-out of the Vioxx class action has passed. Counsel are continuing their efforts to resolve this matter through the court process. The Notice of Certification issued by the Court is set out below. Please read it carefully.
At this stage, we are asking those who have suffered a heart attack or stroke after taking the drug Vioxx and who wish to participate in the class action, to please complete and submit our questionnaire as soon as possible.
Authorized by the Ontario Superior Court of Justice
NOTICE OF CERTIFICATION OF THE VIOXX CLASS ACTION AGAINST MERCK FROSST CANADA LTD & AFFILIATES
Read this notice carefully as it may affect your rights.
THE CLASS ACTION
This notice is directed to:
(a) the “Class which is defined as all persons in Canada, including their estates, other than residents of Quebec and Saskatchewan, who were prescribed and ingested Vioxx; and
(b) the “Family Class” which is defined as all persons who by reason of his or her relationship to a member of the Class are entitled to make claims under any of the Dependants Statutes in Canada as a result of the death or personal injury of such member of the Class.
The class action seeks, among other things, damages for personal injury suffered by Class members who ingested Vioxx and consequential damages suffered by the Family Class.
THE CERTIFICATION ORDER
On July 28, 2008, the action was certified as a class proceeding by order of the Ontario Superior Court of Justice. The order appointed Benny Mignacca as the representative plaintiff for the Class and Elaine Mignacca as the representative for the Family Class.
COSTS TO THE CLASS IF THE ACTION IS SUCCESSFUL
Counsel have entered into an agreement with the representative plaintiffs with respect to legal fees and disbursements. The agreement provides that Counsel will not receive payment for their work unless and until the class action is successful or costs are received from the defendants.
The agreement provides that, if the action is successful, counsel will be entitled to a fee payable out of the amount recovered under a judgment or settlement of the action. The amount of the fee would require court approval.
PARTICIPATION IN THE CLASS ACTION
Members of the Class and Family Class who want to participate in the class action are automatically included and need not do anything at this time. The Class Proceedings Act provides that no such member, other than the representative plaintiffs, will incur liability for legal costs if the action is dismissed.
If the Court determines the common issues in favour of the class, the Court may consider that the participation of individual Class and Family Class members is required to determine individual issues unique to each individual member. Each class member will be entitled to decide whether to participate further. If a member chooses to participate further in individual proceedings he or she may have to bear the legal costs of that individual proceeding and, if unsuccessful, could be liable to pay a portion of the defendants’ costs incurred in respect of that individual proceeding.
YOU MUST OPT OUT IF YOU DO NOT WANT TO PARTICIPATE IN THE CLASS ACTION
Class members and the Family Class members who do not want to participate in the class action must opt out. If you want to opt out of the class action, you must send a written, signed election, including your name, address, telephone number to: Howie & Partners, Chartered Accountants, 3063 Walker Road, Windsor, ON. No Class member or Family Class member will be permitted to opt out of the class action unless the election to opt out is received by Howie & Partners before July 1, 2010 at 5:00 p.m. E.T.
Each Class member and Family Class member who does not opt out of the class action will be bound by the terms of any judgment or settlement whether favourable or not and will not be allowed to prosecute an independent action. If the class action is successful, he or she may be entitled to share in the amount of any award or settlement recovered.
No person may opt out a minor or a mentally incapable member of the Class or Family Class without permission of the court after notice to The Children’s Lawyer and/or the Public Guardian and Trustee, as appropriate.
The family members of any Class member who opts out will be deemed to have opted out.
If a Class member is deceased, his or her estate trustee has the right to opt out.
A Class member or Family Class member who opts out will not be entitled to participate in the class action. His or her right to pursue a claim in a separate proceeding will not be affected.
PRESERVATION OF MEDICAL RECORDS
Each member of the Class, including estates, who wishes to participate in the Vioxx class action should take all reasonable steps to preserve pharmaceutical and medical records. For further information on how to request the preservation of records or for assistance respecting same, please contact Class Counsel.
ADDITIONAL INFORMATION
This Notice was approved by order of the Ontario Superior Court of Justice. The court offices will by unable to answer any questions about the matters in this Notice. The certification order and other information are available on the Vioxx web site at http:// www.vioxxnationalclassaction.com. Questions for Class Counsel should be directed by email or telephone to:
Harvey T. Strosberg, Q.C.
Tel: 1.800.229.5323 (toll free)
Fax: 1.866.316.5308 (toll free)
Email: vioxxclassaction@strosbergco.com
Michael J. Peerless
Tel: 1.800.461.6166 ext. 2409 (toll free)
Fax: 1.519.672.6065
Email: megan.johnston@siskinds.com
Bonnie Tough
Tel: 1.416.348.7500
Fax: 1.416.348.7505
Email: kp@toughcounsel.com
Joel Rochon
Tel: 1.866.881.2292 (toll free)
Fax: 1.416.363.0263
Email: jrochon@rochongenova.com
The History of this Class Action
In November 2007, Merck & Co. announced that it had agreed conditionally to settle a significant portion of the Vioxx claims in the U.S., setting aside approximately $4.85 billion to do so. Even though those cases deal with the exact same drug as the Canadian litigation, Merck has, to date, made no effort to establish a parallel settlement for Canadian users of Vioxx and Merck Frosst Canada Ltd. has publicly and repeatedly stated its intention to vigorously defend all Vioxx lawsuits in Canada.
The defendants have raised various procedural hurdles which have slowed the progress of the litigation. As a result, all Vioxx lawsuits in Canada remain in various stages of litigation.
RESIDENTS OF ALL PROVINCES AND TERRITORIES EXCEPT FOR QUÉBEC AND SASKATCHEWAN
In Ontario, there is a national class action which has been brought on behalf of all Canadian users of Vioxx and their family members other than those in Québec and Saskatchewan. A consortium of 19 law firms from all across Canada has come together to collectively represent Canadians in this lawsuit and advance the strongest case possible.
On July 28, 2008, the action was certified as a class proceeding for all persons “in Canada, including their estates, other than residents of Québec and Saskatchewan, who were prescribed and ingested Vioxx”. Family of class members may also be permitted to claim for the injury or death of a class member. In the same reasons, Justice Cullity denied Merck’s motion to stay the action. The decision is available at http://www.vioxxcanadaclassaction.com/documents/615537_reasons.pdf.
After various appeals, Merck’s appeal was conclusively denied by the Supreme Court on October 22, 2009.
RESIDENTS OF QUÉBEC
On November 9, 2006, Justice Andre Denis of the Québec Superior Court authorized a class action for Québec residents who suffered damages caused by the use of Vioxx. That case pertains to residents of Québec only and is also continuing to work its way through the legal system.
RESIDENTS OF SASKATCHEWAN
A separate case launched in Saskatchewan was initially certified as a class action in a decision released on February 20, 2008. This decision was appealed successfully by Merck. However the National Counsel Team is cooperating with Saskatchewan counsel to achieve a certified class in Saskatchewan in the near future.
MOVING FORWARD
Because Merck has not, to date, indicated any willingness to make any settlement proposal for Canadian Vioxx users, in spite of their multi-billion dollar settlement proposal in the US, the current strategy of the National Counsel Team is to drive the Ontario litigation forward and deal with the case on the merits. The time for class members to make any necessary decisions about how to advance their individual claims will arise after these various proceedings have been finally determined following a common issues trial. It is unfortunately not possible to predict with certainty how long this process may take; however updates will be provided as they become available.
As members of the National Counsel Team, we wish to express our appreciation to all class members for their patience to date with this complex litigation and we wish to assure you all that everything is being done to ensure that you receive the justice you so rightly deserve.
CLASS MEMBERS
Class members who want to participate in the class action are automatically included and need not do anything at this time. No class member, other than the representative plaintiffs, will be liable for legal costs if the action is dismissed.
Class members or members of their families who are Canadian residents outside of Québec or Saskatchewan and do not want to participate in the class action must opt out. If you want to opt out of the class action, you must send a written, signed election, including your name, address, telephone number to: Howie & Partners, Chartered Accountants, 3063 Walker Road, Windsor, ON, N8W 3R4. No class member will be permitted to opt out of the class action unless the election to opt out is received by Howie & Partners before July 1, 2010 at 5:00 p.m. E.T.
For further information on this action please visit http://vioxxnationalclassaction.ca/.