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In re Vioxx Class Cases, No. B216521

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By FindLaw Staff on December 16, 2009 10:43 AM

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


Opinion by Judge Croskey

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

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