The New Jersey Supreme Court has booted a lawsuit that sought to force Merck to pay for electrocardiograms and follow-up medical care, because the plaintiffs had not suffered any injury. The ruling, which is a big win for the drugmaker, reverses a decision by an appellate court, which found that a trial court dismissal in 2005 was premature.
The Supreme Court decided that individuals can't pursue claims for medical monitoring under New Jersey's Product Liability Act unless they can show they first suffered an injury. "...it is not disputed that plaintiffs do not allege a personal physical injury. Thus, we conclude that because plaintiffs cannot satisfy the definition of harm to state a product liability claim under the Product Liability Act, plaintiffs’ claim for medical monitoring damages must fail.” (Please see page 17 of the ruling).
"The NJ Supreme Court has made it clear that you cannot bring a medical monitoring claim unless you allege you were injured by a product. The plaintiffs in this suit sought to recover from Merck even though VIOXX has been off the market for almost four yars and they do not claim that it ever injured them," says Ted Mayer of Hughes Hubbard & Reed, Merck's lawyer, in a statement.
In its defense, Merck also aruged there is no medical science supporting the plaintiffs’ position that they need to be monitored for cardiovascular conditions almost four years after VIOXX was voluntarily taken off the market.