$220 Million Settlement in Nation's First Vioxx Consumer Fraud Class Action

Merck pulled Vioxx from the market in September 2004 after clinical data showed the COX-2 inhibitor doubled the risk of heart attack and stroke in long-term users. While thousands of personal-injury suits followed, a separate question went largely unaddressed: what about the millions of patients who took the drug without suffering a cardiovascular event, but who paid for a product Merck had misrepresented?

In 2004, Gray Ritter Graham attorney Don Downing filed a class action in Jackson County Circuit Court on behalf of Missouri residents who purchased Vioxx for personal or family use. The suit alleged that Merck violated the Missouri Merchandising Practices Act by suppressing and omitting material facts about the drug's cardiovascular risks, causing consumers to pay for a product worth less than what Merck represented it to be. Because the MMPA does not require individual proof of reliance or causation, the theory was well-suited to class treatment.

Merck challenged class certification, arguing that individual issues predominated. In May 2009 the Missouri Court of Appeals, Western District, disagreed and affirmed the certified class. The court found that common questions, particularly whether Merck's conduct violated the MMPA, were sufficient to bind the claims of all Missouri purchasers together regardless of each buyer's personal circumstances.

Downing's team at Gray Ritter Graham worked alongside the Kansas City firm Stueve Siegel Hanson. Together the firms litigated the case for roughly eight years. In October 2012 the parties executed a settlement agreement. Under its terms Merck agreed to fund a common settlement of up to $220 million. Class members could claim a flat $180 payment with a sworn declaration of use (no documentary proof required) or $90 for each month of purchases supported by documentary proof such as a physician's letter. Merck also agreed to cover attorneys' fees and notice and administration costs separately, leaving the full fund available for consumers.

Jackson County Circuit Court Judge Marco Roldan held a final-approval hearing on March 15, 2013, and approved the settlement as fair, reasonable, and adequate. The class potentially covered up to 300,000 Missourians. Merck admitted no wrongdoing. The Missouri case also prompted a parallel nationwide settlement in 2013 for non-Missouri Vioxx consumers in the federal MDL, valued at up to $23 million, which followed the precedent the Missouri action had set.