◊ INTRODUCTION
◊ AMENDED STATEMENT OF
   CLAIM
◊ PROVING THE CLAIM
◊ HEALTH CANADA REVIEW
   PANEL
◊ MERCK PRODUCT CIRCULARS
◊ PRODUCT RECALL NOTICES
◊ YOUR PERSONAL CLAIM

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Proving the Claim   On September 30, 2004, Merck admitted Vioxx was a high risk dangerous drug. At the very same time, Merck has stated it will "vigorously defend" all claims against it.   The drug company will argue that on a case by case basis it cannot be proven that Vioxx was responsible for a heart attack or stroke. We have very strong arguments to the contrary. If you are interested in the legal details, some of them are outlined below.   Some persons treated with Vioxx and their doctors may feel that it will be difficult to prove with reasonable certainty that Vioxx caused a heart attack, stroke or other major health problem. Contrary to popular belief, the law does not require strict medical proof in these cases. Snell v. Farrell, [1990] 2 S.C.R. 311.   If you had no pre-existing cardiovascular problems, your claim will against Merck will be more straightforward. However, Merck will still be responsible for causing an increased risk of a heart attack or stroke following the logic of a 1996 decision of the Supreme Court of Canada called Leonati vAthey.   Merck advised physicians that there was less than .1 percent chance that Vioxx would cause a heart attack or stroke or other serious cardiovascular problem. When Vioxx was recalled from the market, it appeared that persons who took Vioxx at 25 mg for 18 months had a 3.5 percent risk of having a heart or stroke.   There is a very strong argument that the law no longer requires direct proof that a drug caused an individual to have a heart attack or stroke. It should be sufficient if the drug increased the risk in the general population of having a heart attack or a stroke or other adverse cardiovascular event.   The House of Lords accepted this argument in 2002 in a case called Fairchilds v Glenhaven Funeral Services. How far Canadian Courts can be persuaded to accept the argument has been discussed in the December 2003 issue of the Canadian Bar Review contained an article by Jamie Cassels and Craig Jones on this topic: Rethinking Ends and Means in Mass Tort: Probabilistic Causation and Risk-based Mass Tort Claims after Fairchild V. Glenhaven Funeral Services.   The Class Actions Act expressly allows for the use of statistical evidence in determining the distribution of the award to members of the class. Individual compensation will depend upon a number of factors which may include: length of time on Vioxx (as measure of risk); severity and effects of condition.   We expect these issues to be central to this case as it proceeds and are confident that the better arguments are on the side of Vioxx claimants.

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