Vioxx

We are taking steps which follow the certification of the Vioxx Class Action for Canada. An order was made by Mr. Justice Cullity in February 2010 after the finalization of the dismissal by the Courts of the final appeals from the certification granted by the court.

We reviewed each of our files and letters were sent by mail to all of our clients (except in Quebec and Saskatchewan) advising that of a June 30, 2010 deadline for the receipt of any and all forms opting out of the class action. Most clients responded and we sent opt-out forms to the class action administrator.  Where the person has opted out they are required to proceed with an individual claim in court which would not be limited to the amounts for class action settlement once reached. An individual case would carry with it the risk of what outcome will be reached in their case.  There is also a risk for the person claiming to be responsible for paying Merck’s legal costs in the event their claim is not successful.  Those who stay in the class action will have no responsibility for any legal costs but if and when the class action settles they would be required to accept an amount determined by a formula for compensation in the class action as approved by the Court.

If you chose to stay in the Class Action we will continue to represent you and do the necessary work to see that you receive the maximum entitlement under the circumstances of your case for any future settlement.  The cases we recommended for opting out are ones with more serious heart attack or stroke injuries, work disability and loss of income, significant regular Vioxx use (including use at the time of the event) and fewest other cardiac risk or other negative factors (eg. smoking, family or personal medical history, age, weight).  For those cases there will be close scrutiny by Merck and its lawyers of the strength of the case, so that a claim that may end up paid through the class action may not be strong enough to succeed on an individual basis.  We are preparing court claims for the individual cases and it is not known how far those cases will go individually in the court process before they are resolved. There have been no significant developments to report this summer yet…

For now:

1. Please send us a note by mail, fax or email to confirm all of your current contact information unless you have done so recently and there is no change. Do not put personal information into comments you may wish to make here at our website. The postings are available for anyone to see.

2.  Please send us any prescription records or other documentation of Vioxx use that you have not already sent us.

3.  Please send us any updates as to medical or work disability condition changes from before and any new health issues related or not.

4.  Please send us any Death Certificate, Will, or Estate Probate documentation you have not sent us before if the Vioxx user is deceased. We will need to get instructions from the Estate Executor if there is one. Be aware that family members are bound by the decision of the injured party and can not split claims between the class action and outside of the class action.  Families should begin to discuss this and come to a decision together.

5.  We welcome general questions or comments which will be posted at this website. For ANY specific personal case questions call our office or email: miskinlaw@yahoo.com

WE HAVE BEEN WAITING A LONG TIME FOR THIS STAGE IN THE VIOXX CLASS ACTION CLAIM.  THIS DOES NOT MEAN THERE IS ANY SETTLEMENT BUT WE HAVE MOVED A STEP CLOSER TO RESOLVING CANADIAN VIOXX CLAIMS. THANKS TO THOSE WHO HAVE RETURNED THEIR ELECTION FORMS.

The Centennial Building (Former Whitby Courthouse)

The main area of practice of  Miskin law offices is civil litigation, which is basically law suits involving claims for money.  Murray Miskin  has over 30 years of experience acting for parties claiming in civil cases brought in the Ontario Courts.  Our work is mainly in the Ontario’s Superior Court of Justice in bringing civil claims for money damages.  We do not handle Small Claims Court cases. Litigation is an expensive process and so if you hire us to defend a law suit you will be billed regularly at hourly rates. Law suits of under $10,000 are handled by the Small Claims Court where lawyers are not necessary. In 2010 that increased to $25,000.  In our experience small claims are not economically handled with lawyers involved and we do not generally act in Small Claims Court. Often insurance is available to cover claims that may be brought against you and we will, when consulted, look into that. If you wish to bring a claim we usually bill when we recover money in the claim.  Most of our clients are regular people, without a lot of money, who can not afford the luxury of litigation. Sometimes litigation is a necessity. When it is appropriate we will advise you  to settle and how to keep costs under control during the process. While we are a small community firm, most of our litigation is fought against the largest law firms in Canada and we do not hesitate to take on a difficult claim we believe to be reasonable and just.
CONTINGENCY FEES AND CLASS ACTIONS:
More often than defending law suits we act on behalf of individuals and small business people suing to collect money due to them. Often we can arrange to collect our fee from the proceeds of the law suit when it is complete.  In personal injury cases we normally do not charge a fee until a successful recovery is made on our clients’ behalf.  This means anyone with a good personal injury claim with significant damages can come to us and not be restricted by lack of financial resources.  Sometimes this approach may not be appropriate in risky cases where we do not believe success is assured. Usually we will advise clients not to proceed with high risk claims which may end up costing more than they can achieve. We ask clients to pay the expenses of a law suit we bring on their behalf through retainers from time to time as needed and if they are able to pay.  For large cases involving many people with a claim against one company or individual who has harmed many or the maker of a particular harmful product such as the drugs Vioxx, Bextra, Yaz, Yasmin or Asbestos injury we work exclusively on contingency fee.  These cases involve all risk and expenses being with the lawyer who bears the risk of carrying a speculative case.  For this type of case known as Mass Tort Litigation  we are now charging contingency fees of one third of recovery which we share with other lawyers working with us.  Contingency fees are now legal in Ontario and regulated by the Law Society of Upper Canada. Feel free to arrange a no cost and no obligation appointment to discuss litigation matters before you proceed.  Our first free consultation will be for as much time as necessary to understand and provide an opinion on the case and is not necessarily the usual first half hour as many lawyers offer.  We are frequently consulted by individuals including lawyers for second opinions on law suits which are in progress or to review settlement proposals.
SETTLEMENT OR TRIAL:
Usually it is better to settle on the best terms rather than go through the stress, expense and often years it takes to get a case to trial.  Trial results are uncertain and there is much risk involved especially where there is a jury.  Court rules related to costs and offers make the risk much higher to the point where few cases actually go to trial.  When it appears appropriate we encourage settlement through negotiation or mediation.  When settlement can not be achieved we consider the alternative process of arbitration which is usually cheaper, faster and less uncertain than court. Some cases just can not settle out of court and when that happens, we, unlike some litigation  lawyers, are not afraid to take a case to trial even if it is risky.  Insurers and their lawyers know that we do not back down when claims are denied and usually we can find a reasonable settlement. Our  good reputation is based on years of litigation including considerable trial experience, positive client results, knowledge of the court system and the persistence which does lead us sometimes to trial and to the Ontario Court of Appeal.
Murray H. Miskin
Murray Miskin is widely recognized as a Canadian pioneer in the field of Alternative Dispute Resolution both for mediation and arbitration.  He is recognized by the legal profession nationally through a leadership role in the Canadian Bar Association (CBA), and for his expertise in the fields of Insurance law, Civil Litigation and Alternative Dispute Resolution. Murray served for two years as Chair of the CBA’s National Sections Council and was on the CBA Board of Directors and Finance Committee from 2007-2009.  Through his long involvement with the Association of Trial Lawyers of America (now called the American Association for Justice or AAJ) Murray is well known among U.S. personal injury lawyers. He interacts regularly with the AAJ leadership and is regularly contacted for advice on Canadian law and referrals from American lawyers. He also belongs to the Inter American Bar Association (IABA) where he also works with lawyers in Central and South America.

Michelle E. Brown

Our Associate lawyer Michelle Brown is a member of AAJ and is active in the AAJ’s minority caucus. Our lawyers belong to, and are both active in the Canadian Bar Association and its provincial branch the Ontario Bar Association, the Ontario Trial Lawyers Association, the Durham Region Law Association and the Advocates Society.

Put our experience and network of contacts to work for you.
If you wish to consult us on a litigation matter please call the office to arrange a telephone initial case review and then schedule an appointment for a free first meeting to discuss your case in detail.

In Canada all claimants (outside of Quebec and Saskatchewan) had to decide before June 30, 2010 whether to accept the class action as the basis for their compensation or to opt out and seek compensation based on their individual case. We advised each of our clients and guided them through that decision making process.  Read our article at this website titled: “Attention Vioxx Clients”. If you have a serious Vioxx injury (to yourself or a family member) you need legal advice right away and should have a lawyer to represent you and help you decide what to do.  If you are represented by another law firm you should have checked by now with that law firm about your options and their advice for your claim. If you have done nothing you are part of the Class Action and will have to accept the compensation that it may or may not give you.  If you opted out by the June 30 deadline you may get more compensation depending on your case but you also will face a greater risk.

At some point a business decision will be made by Merck to settle claims outside the US, and Canada may or may not be early on Merck’s settlement agenda.  Merck can not be forced to settle and the road to trial is still a long one. Extreme patience is still required. The following paragraphs set out the history of the Vioxx case for Canadians until now:

Vioxx was a very popular, profitable and highly promoted anti-inflammatory drug manufactured by Merck and rushed to market in 1999 to compete with Pfizer’s similar drug Celebrex. When evidence, originally suppressed by Merck, came out about cardiac dangers the drug was recalled from the market September 30, 2004. At that time our firm sought out individual clients to make claims against Merck. Many of these claims are for fatal incidents where we represent the families of Vioxx users who died after using the drug. Across Canada a number of “class action” claims were issued by lawyers. Most of those lawyers who each act for a “representative plaintiff” are united in a national coalition with the primary court proceedings in Toronto, Ontario. We have worked with the class action lawyers to assist in showing the strength of the claims by Canadians related to Vioxx, but our focus has been on individual clients rather than participating directly in the class action Court proceedings in Canada. Claims were brought for some of our clients in the New Jersey court but those claims were not allowed to continue as a term for settlement of American claims.
Claims against the manufacturer Merck were disputed hotly and there were mixed trial results in the United States before a settlement was reached. Some cases were in the US Federal Court and some were tried in individual state courts. There are a number of unusual situations which were not considered when the American settlement was agreed upon and there is some fine tuning to do before it is completed. This stage is likely to end before settlements in Canada and other countries will be considered by Merck. There has been a settlement this year of an American class action case to reimburse those who paid for Vioxx prescriptions but that does not affect individual injury claims. In the United States injury claims are not dealt with by class action. The Canadian class action in Ontario for people injured by Vioxx use was certified in 2008 but that was delayed by appeal in Ontario and to the Supreme Court of Canada until late 2009. Merck continues efforts to delay the proceedings until they are ready to talk. We expect to be in direct talks with Merck when that time comes. We are hoping this will still happen this year, 2010 and we are continuing our work towards that with our file preparation. With Merck there are a huge number of claims all over the world and the first three years after recall of the drug were ones where Merck denied any responsibility for the effects of Vioxx. This denial remains in effect in Canada but can not logically continue as U.S. cases settle. Recently, in Australia,  Merck lost the first Vioxx trial outside of the United States. We are still looking at pursuing individual settlements for many of our clients with others being part of a class action settlement. We will again be contacting each of our clients when it looks like there will be a Canadian settlement. To date there have been no developments related to possible Canadian settlement and our approaches to the company have been rejected as premature. An appeal of class action certification was finally dismissed.  On October 22 the Supreme Court of Canada put an end to Merck’s attempt to stall the class action due to inter-provincial conflict and confirmed the rejection of a separate Saskatchewan national claim by that province’s appeal court.  The Ontario Divisional Court finally decided to dismiss Merck’s last appeal and deny further leave (permission) to Appeal in a December 7th decision by Madam Justice Denise Bellamy. That decision was not reported in the news and there is still little general knowledge that certification appeals are over.  On February 10, 2010 Mr. Justice Cullity updated the procedural orders related to the certified class action and we now have until June 30 to deliver notices for individual claims opting out of the class action.  This order was formally issued by the Court on March 5, 2010.  Only one newspaper notice was ordered to be given which was in the Globe and Mail newspaper February 27, 2010.  Most people with claims still have no idea that the Class Action is proceeding and that an important decision must be made and filed for individual cases by the end of June 2010.

We are working on our own strategy for settlement and for the procedure for advancing individual claims now that the class action certification is complete.  The lawyers for Merck in Canada appear to have clear instructions to simply continue to focus on delaying the class action proceedings in court for now.  We are proceeding with several cases opted out of the class action and are working on issuing court claims in several provinces. Some of our discussions and our strategy mut be kept confidential as this website is accessible to anyone. You may still contact our firm for representation now if you believe you have a Vioxx injury claim for yourself or a family member. Murray Miskin, July 1,2010

A QUOTE: “We try to remember that medicine is for the patient. We try never to forget that medicine is for the people. It is not for the profits. The profits follow, and if we have remembered that, they have never failed to appear. The better we have remembered it, the larger they have been.” George W. Merck II (1935)