Firm loses bid to act in Ont.

By ANNE KYLE Leader-Post

Regina Leader-Post

Saturday, February 4, 2006

Page B-3

Merchant Law Group has lost its bid to act as legal counsel in a proposed Ontario class action suit against Vioxx drug manufacturer Merck Frosst for damages relating to the use of the painkiller.
The Ontario decision does not seek to interfere with what has already happened in Saskatchewan , said Saskatoon lawyer Evatt Merchant, speaking on behalf of Merchant Law Group.
The firm, Merchant said, is continuing with a similar class action against Vioxx in Saskatchewan and is currently awaiting a decision by Justice John Klebuc on its Jan. 16 application for certification of the action.
On Friday, Ontario Superior Court Justice Warren Winkler granted a national consortium of 19 law firms from across Canada, including the firm of Scharfstein Gibbings , Walen and Fisher of Saskatoon, the right to act as legal counsel in the proposed Vioxx national class action suit in that province.
Calgary lawyer Vaughn Marshall speaking on behalf of the consortium said the national team will now move forward and apply to the courts for certification of the class action on behalf of all persons in Canada (other than Quebec), who used Vioxx, and all third parties who paid for the drug.
The effect of the decision is to bring a permanent halt to numerous other proposed class actions that had been started after drug-maker Merck issued an immediate worldwide withdrawal of the drug on Sept. 30, 2004, said Marshall in a prepared statement.
The withdrawal was due to the increased risk of cardiovascular events associated with Vioxx, including heart attacks and stroke, the statement said.
Marshall said the national team was challenged by the Merchant Law Group, which in a preliminary application requested the court appoint it to have carriage of the Ontario proceedings; allow its lawsuit to continue at the same time as the one by the national team; or allow the Regina-based firm to join the consortium. Winkler rejected all three proposals.
Winkler recognized that the national team is comprised of many pre-eminent class action counsel from across Canada and has extensive experience at every court level involving certification of class proceedings, Marshall said, quoting from the decision.
The court also recognized the consortiums combined resources, financial and otherwise, and the breadth of them are significant, he said, noting the consortium represents more than 6,600 potential clients in this case.
Merchant said any of his firms clients in the Ontario action against Merck Frosst can opt in to be part of the Saskatchewan lawsuit if it is certified as a class action. We are certainly optimistic we will be certified but you can never tell.
Members of the legal community will be watching the developments in these two cases with a great deal of interest to see which class action will proceed through the courts.