TRENTON, N.J.- New Jersey’s Supreme Court will hear an appeal by Merck & Co. of a lower court ruling that would let health plans that paid for prescriptions of its withdrawn painkiller Vioxx sue as a class to recover billions of dollars.

The order, issued last week by the Supreme Court and made public late Monday, allows the Whitehouse
Station-based drug company to appeal a unanimous March ruling by three New Jersey Appellate Division judges letting the lawsuit go forward.

The lawsuit had been approved as a nationwide class-action lawsuit under the New Jersey Consumer Fraud
Act by Superior Court Judge Carol E. Higbee in Atlantic City. Higbee is overseeing all Vioxx lawsuits in New Jersey, Merck’s home state, where about half of the more than 16,000 Vioxx suits have been filed.

“We have long believed that it is not an appropriate case to be handled as a class action because the situation of each insurance company and HMO is so different from one another,” Merck outside counsel
Ted Mayer said in a statement. “Every member of the supposed class had different types of information
in deciding whether to reimburse patients for Vioxx.”

The International Union of Operating Engineers Local 68 Welfare Fund sued Merck in 2003, arguing its
health plan would not have covered Vioxx prescriptions had Merck not concealed the cardiovascular risks of Vioxx, which cost several times as much as older, traditional anti-inflammatory medicines. Last July, Higbee certified the case as a class action.

The union’s lead attorney, Chris Seeger, said he is confident he will win again in the appeal before the New Jersey Supreme Court.

“With trebling of damages and attorneys’ fees, this could easily be over $15 billion to $20 billion” that Merck would have to pay,” Seeger said. “This could be the showstopper for them.”

He said health plans and unions “could have paid for naproxen or ibuprofen at a fraction of the cost of Vioxx.”

Unlike the Vioxx product liability trials that began last summer, the plaintiffs won’t have to prove the one-time blockbuster arthritis pill harmed any patients.

So far, Merck has won four of seven product liability verdicts, including three of four verdicts in New Jersey. Earlier this month, it won a case where jurors ruled that a Lawrenceville woman’s heart attack was caused by her own poor health, not Vioxx.

On Monday, Merck said the next Vioxx trial in New Jersey, set to start on Sept. 11, is on hold. It was to
include two plaintiffs alleging long-term use of Vioxx.

Merck withdrew Vioxx from the market on Sept. 30, 2004, saying its research showed it doubled the risk of heart attack and stroke after 18 months’ use, although more recent data indicate the risk started within a few months.

According to Merck legal spokesman Kent Jarrell, lawyers for plaintiff Patricia Hatch of Point Pleasant dropped one of the cases. Jarrell said she alleged her 52-year-old husband, Stephen, died from a heart attack after  receiving more than two years’ worth of free Vioxx samples; Merck disputed whether he got those samples.

Judge Higbee preferred not to let the trial proceed with only one plaintiff and has postponed the second
case for now, Jarrell said. That case was brought by Robert McFarland of Mount Laurel, who survived a heart attack about five years ago at age 52.

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