A state appeals court last week de-certified a class action by consumers over alleged misrepresentations in marketing a drug. See Merck & Co. v. Ratliff, No. 2011-000234 (Ky. Ct. App., 2/10/12).
The case involved the drug Vioxx, which was a highly effective medication formerly in widespread use for patients with arthritis and other conditions causing chronic or acute pain. Plaintiff was a former user of Vioxx for his chronic osteoarthritis. Although Ratliff’s insurance paid for most of the cost of the drug, which was at the time approximately $66 per month, Ratliff contributed about $5 each month out of pocket. Ratliff discontinued using Vioxx in early 2004.
Plaintiff brought a putative class action on behalf of product users who had not suffered cardio-vascular side effects, alleging that the defendant deceived the members of the proposed class in violation of the state Consumer Protection Act by promoting and/or allowing the sale of Vioxx with the use of unfair, false, misleading or deceptive acts or practices. As a result, the class purchased the drug when it wouldn't have otherwise.
The case followed a twisting path, to federal court, to the MDL, back to state court, up to the state supreme court on mandamus, and back. Long story short, the class was certified by the trial court, and that decision eventually became ripe for review by the court of appeals.
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