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Michael Booth

New Jersey Law Journal

10-26-2007

The New Jersey Supreme Court is chewing over a case that will decide whether Merck & Co. must pay a projected $35 million tab for medical monitoring of people who may have suffered "silent heart attacks" from use of its drug Vioxx.

The putative class action suit, Sinclair v. Merck & Co. Inc., A-117-06, was filed on behalf of about 233,000 people who took the painkiller before its recall from the market in 2004 amid revelations of adverse cardiovascular effects. Thousands of individual and class action suits have since been lodged against the Whitehouse Station, N.J., manufacturer.

Atlantic County Superior Court Judge Carol Higbee, the judge in charge of Vioxx litigation in New Jersey, dismissed the suit on summary judgment, finding that medical-monitoring claims -- though recognized in the toxic-tort context -- did not exist under New Jersey's Product Liability Act, which requires showing "manifest injury."

But last January, in a ruling of first impression here, the Appellate Division reversed and remanded, saying the plaintiffs should have a chance to prove whether any of them suffered undetected heart attacks that may have been caused by Vioxx use.

During oral arguments before the court on Monday, Merck lawyer John Beisner said saddling the company with a duty to pay before establishing proof of injury and causation "would dangerously expand products liability law."

Beisner, of O'Melveny & Myers in Washington, D.C., said there should be no right to medical-monitoring costs without evidence that a heart attack occurred.

Chief Justice Stuart Rabner suggested it was a Catch-22, since the plaintiffs can't demonstrate they suffered silent heart attacks without medical monitoring.

"That's just a possibility," Beisner objected. "There needs to be the suffering of a manifest injury."

Justice Virginia Long asked whether the plaintiffs could pursue a claim under the Consumer Fraud Act.

"That would be an effort to dress up the claim in order to have the claim survive," Beisner said. "To just turn this into a consumer fraud claim would turn the Products Liability Act on its head."

Justice Jaynee LaVecchia asked whether it were possible that the plaintiffs' belief that they had suffered heart attacks was sufficient to establish harm.

"The bottom line is that the [act] requires physical injury," Beisner replied. "There is no other interpretation."

The plaintiffs' lawyer, Elizabeth Cabraser, told the court that requiring manifest injury in these circumstances would be inconsistent with the court's general policy that the Products Liability Act be construed as broadly as possible.

"A latent injury is not observable, but it is sufferable," said Cabraser, of Lieff Cabraser Heimann & Bernstein in San Francisco. "What the plaintiff doesn't know might be hurting him."

When Justice Roberto Rivera-Soto asked Cabraser for her definition of "harm," she replied: "personal physical injury, trauma or death."

Rivera-Soto then asked how medical monitoring could be a remedy for an injury that may not have occurred.

"The injury in a medical-monitoring claim is the need for an exam," she said. "The plaintiffs need to be free from risk. Physical injury is not a requisite for medical monitoring."

Cabraser said the costs of the medical monitoring in this case, which would apply only to New Jersey residents who took the drug, would be a small cost. Statistical evidence suggests that out of the 233,000 people who would benefit from a favorable ruling, at least 1,800 would have suffered a heart attack without knowing it. "It's a one-time exam; there is no follow-up," she said. "You have to ask, 'Is the heart worth the price.'"

Merck, which estimates it has spent $1.2 billion defending itself against 26,000 suits by at least 47,000 plaintiffs and an additional 265 class actions, has set aside $1.9 billion for future defense costs.