In re Vioxx Class Cases, No. B216521

In an action against Merck, the manufacturer and marketer of Vioxx, seeking recovery for the difference in price between what the plaintiffs paid and what they would have paid for a safer, equally effective, pain reliever, trial court's denial of plaintiffs' motion for certification of a class action is affirmed as the decision is consistent with Tobacco II and is supported by substantial evidence where: 1) trial court did not err in concluding the individual plaintiffs' claims were not typical of the claims of the TPPs; 2) the trial court did not err in concluding that a generic version of the drug was not a valid comparator on a class-wide basis; and 3) because the trial court concluded, on the evidence, that the issue of a proper comparator was a patient-specific issue, incorporating the patient's medical history, treatment needs, and drug interactions, it properly concluded that restitution could not be calculated on a class-wide basis. 

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Appellate Information

Filed December 15, 2009

Judges

Opinion by Judge Croskey

Counsel
For Appellant:   Hagens Berman Sobol Shapiro, Steve W. Berman, Craig R. Spiegel and Elaine T. Byszewski

For Appellee:   O'Melveny & Myers, Richard B. Goetz and Charles C. Lifland