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New Jersey court revives Vioxx medical monitoring class action

Remember when The American Lawyer said mass torts were dead? If you ever believed it, you have to believe in zombies now.

Even Judge Higbee thought the plaintiffs' attempt to twist New Jersey tort law into creating a cause of action for medical monitoring of a pharmaceutical drug was meritless, and dismissed it, but the New Jersey Court of Appeals reinstated the case by extending New Jersey law for the first time to such cases. The complaint is now merely factually frivolous for alleging without any scientific basis long-term effects from Vioxx requiring medical monitoring; plaintiffs still have to clear the class certification hurdle, which is an implausible task in a judicial system that respects due process. Of course, a 0.1% chance of obtaining hundreds or thousands of dollars of damages for each of tens of millions of putative plaintiffs is still a pretty good lottery ticket. (Sinclair v. Merck (N.J. App. Jan. 16, 2006); W$J).

This suit probably won't go anywhere in the long run unless a new study comes up with surprising results in the next year or so. If there were long-term effects from short-term Vioxx usage, we would have seen them already, which is why the market is shrugging off this decision, whose most likely short-term effect will be to increase Merck's legal expenses.

But there are long-term effects beyond Merck. The possibility of billions of dollars of damages for millions of plaintiffs who have suffered no cognizable injury is precisely the sort of gold-mine the plaintiffs' bar is looking for; the threat of bankrupting liabilities tends to encourage extortionate settlement, and settlement at pennies on the dollar of a gigantic meritless claim can be remarkably profitable, as the Enron litigation showed. This decision, if extended further by New Jersey courts, could lead to New Jersey becoming a magnet for plaintiffs. If the New Jersey legislature (or New Jersey Supreme Court) doesn't step in, it's a strong signal for businesses to leave the state.



Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.