Ontario Court Grants Merck Time to Appeal Class Certification of Vioxx Action

MONTREAL, May 11, 2009 - The  Court of Appeal for Ontario has issued a procedural ruling that permits Merck Frosst Canada Ltd. and Merck & Co., Inc. an extension of time to pursue an appeal of an order certifying a multi-jurisdictional class of Vioxx users.

Today’s decision provides Merck with the opportunity to present an appeal of the Ontario certification order in light of the unanimous decision of a three-Justice panel of the Court of Appeal of Saskatchewan in March quashing the certification of an overlapping multi-jurisdictional Vioxx class in that province.  The Saskatchewan Court held that the lower court there had erred in finding that the respondents had established an identifiable class, in defining common issues, and in holding that a class action was the preferable procedure for addressing the claims. 

The Ontario Superior Court had previously denied a motion for leave to appeal the Ontario certification order, but that decision was made before the Saskatchewan Court of Appeal’s decision was released.  In light of the conflict between the Saskatchewan and Ontario decisions, Merck sought an extension of time, so that the developments in Saskatchewan could be taken into account.

In rendering his decision, Justice Paul Rouleau of the Ontario Court of Appeal stated, ”It may well be that, as submitted by the moving parties, Bellamy J.  [the Ontario judge, sitting as a Justice of the Superior Court, who denied the earlier motion for leave to appeal] would have viewed the matter differently had the decision of the Saskatchewan Court of Appeal quashing the certification issued prior to her rendering her decision.”     

The decision does not address the merits of the Ontario class certification decision or the appeal. Justice Rouleau also did not decide the procedural question of whether the appeal should be brought in the Court of Appeal, or whether a further motion in the Divisional Court would be required.

About Merck Frosst Canada Ltd.
At Merck Frosst, patients come first.  Merck Frosst Canada Ltd. is a research-driven pharmaceutical company.  Merck Frosst discovers, develops and markets a broad range of innovative medicines to improve human health.  The Merck Frosst Centre for Therapeutic Research, one of the largest biomedical research facilities in Canada, has the mandate to discover new therapies for the treatment of infectious diseases.  More information about Merck Frosst is available at http://www.merckfrosst.com.

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