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Vioxx discovery to date

"Merck has produced approximately 22 million pages of documents and a terabyte of data to the [Plaintiffs' Steering Committee], more than 310 depositions have been noticed relating to 168 witnesses, depositions have been taken for more than 145 days and now comprise over 35,000 pages of testimony." — Judge Fallon's November 22, 2006 Order at 3 n. 4.

That order, as expected by even the plaintiffs, refused to certify a nationwide personal-injury class and hinted that even state-wide personal-injury classes could not be certified as a class because of the predominating individualized issues. (Of course, because of the dozens of pre-CAFA class actions that have been filed in various state courts, plaintiffs will get more than one bite at this apple; while Judge Easterbrook's landmark Firestone opinion holds that this would be improper and that such state-court flouting of the federal order could be enjoined, it is unclear whether Judge Fallon will follow that precedent.)

For you complex civil procedure mavens out there, the Plaintiffs' Steering Committee, apparently anticipating defeat in the Fifth Circuit, has taken the interesting and unprecedented tack of asking that the MDL remand the 23(f) appeal back to the transferor courts for resolution by various other circuit courts of appeals, hoping to roll the dice in the Ninth Circuit or a fortuitous three-judge panel elsewhere. Such an extraordinary step would almost certainly violate the law for reasons too arcane to go into without putting the vast majority of readers to sleep, but Judge Fallon has not yet dismissed the idea out of hand.

Public Citizen's Brian Wolfman and Professor Erichson also comment. Class certification issues are still pending for classes seeking medical monitoring relief and "consumer fraud" damages.



Rafael Mangual
Project Manager,
Legal Policy

Katherine Lazarski
Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.