Missouri Vioxx Case Certified

Plaintiffs in this case brought a Missouri statewide class action on behalf of all Missouri purchasers of Vioxx, the Cox-2 pain reliever that Merck pulled off the market after the FDA identified several misleading sales practices used by Merck to market the product. Plaintiffs moved for an order certifying a class of Missouri consumers, and after significant briefing, the Court held a class certification hearing.

On June 12, 2008, the trial court certified a class consisting of "all Missouri residents who purchased Vioxx for personal or family use." In certifying the class, the trial court conducted a detailed analysis of the record, selected the correct legal standard, and thoughtfully applied each element of Missouri Rule of Civil Procedure 52.08 to the facts of the case. Merck ultimately decided to appeal the trial court's class certification order to the Missouri Court of Appeals.

Merck raised two points on its appeal. In its first point, Merck contended that the trial court erred in certifying the class because the requirement of predominance was not met. It argued that individual evidentiary issues would overwhelm the litigation because no single body of evidence would satisfy the elements of Plaintiffs' action under the MMPA. However, the Missouri Court of Appeals held that predominance does not require that all issues be common to the class members. Rather, the Court stated that Missouri law requires only that at least one significant fact question or issue, dispositive or not, be common within the class's claim. The Court went on to conclude that the legality of Merck's conduct in its manufacturing and merchandizing of Vioxx in Missouri was common to all the class members and significant to the case. Consequently, the Missouri Court of Appeals held that the trial court did not abuse its discretion in finding the predominance requirement satisfied at the class certification stage.

In its second point, Merck argued that Plubell and Ivey were not typical or adequate class representatives because the facts underlying their claims failed to meet the elements required by the MMPA. Merck first asserted that Plubell did not "purchase" Vioxx and could not show loss under the MMPA because her insurer paid for her Vioxx prescription. The appellate court held that Merck's argument went solely to the merits of the case and was not a proper consideration at the class certification stage. Moreover, Merck had not shown this issue to be atypical of any of the other class members.

Merck next argued Ivey could not show loss under the MMPA because he could not prove he would not have purchased Vioxx had he known the risks. However, the appellate court again held that this argument went solely to the merits of the case, which was not a proper consideration at the class certification stage. Finally, Merck's argument that Plubell and Ivey were not adequate class representatives failed to raise claims of conflicts in their representation other than issues going to the merits of the case. As a result, the Missouri Court of Appeals concluded that the trial court did not abuse its discretion in finding the typicality and adequacy requirements met for class certification. In sum, the Missouri Court of Appeals affirmed the trial court's class certification order in every respect.

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