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In re Vioxx Litigation

July 31, 2007


On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Case Code No. 619(MT).

The opinion of the court was delivered by: Payne, J.A.D.



Argued March 27, 2007

Before Judges Kestin, Weissbard and Payne.

In this matter, ninety-eight plaintiffs residing in England and Wales appeal from the order of Judge Higbee dismissing, pursuant to the doctrine of forum non conveniens, their personal injury lawsuits against defendant, Merck & Co., Inc., the developer and manufacturer of the prescription medicine VIOXX, and Merck Sharp & Dohme, Ltd., its U.K. subsidiary, as improperly instituted in New Jersey. We affirm.


Following the disclosure of scientific studies suggesting an association between long-term use of VIOXX, a medication used in the treatment of symptoms of arthritis, and an increased risk of heart attack, and the withdrawal of the drug from the market, personal injury law suits commenced to be filed against Merck in New Jersey, where Merck maintains its corporate headquarters. After mass tort designation was given to the litigation by the New Jersey Supreme Court, the cases were centralized for administration in Atlantic County and assigned for management and trial to Judge Higbee. Over fifteen thousand cases are presently pending.

In 2005, complaints were filed in New Jersey on behalf of the ninety-eight plaintiffs from England and Wales (the "U.K. plaintiffs") who are appellants in the present matter. Their master complaint, dated November 14, 2005, sets forth product liability causes of action based upon defective design and failure to warn, as well as claims of breach of the New Jersey Consumer Fraud Act, breach of express warranty, wrongful death and survivorship, and loss of consortium. Plaintiffs seek both compensatory and punitive damages, as well as attorneys' fees and costs.

In November 2005, Merck filed a motion to dismiss the complaints of all plaintiffs residing outside of the United States on forum non conveniens grounds. Judge Higbee determined to hear the motion as it applied to the U.K. plaintiffs first and, after full briefing and argument, dismissed their claims as improperly brought in New Jersey. Her conditional order of dismissal required Merck to submit to service of process and jurisdiction in the U.K.; to agree to satisfy any final judgment rendered by a U.K. forum; to forego any statute of limitations defense applicable because of the pendency of suit in the United States; and to permit plaintiffs, under specified conditions, to return to New Jersey if the U.K. declined to accept jurisdiction over their claims. This appeal followed.


The equitable doctrine of forum non conveniens was "crystallized" by the United States Supreme Court in Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 911 L.Ed. 1055 (1947) and Koster v. (American) Lumbermen's Mut. Cas. Co., 330 U.S. 518, 67 S.Ct. 828, 91 L.Ed. 1067 (1947), and the principles expressed there were adopted in New Jersey in Gore v. U.S. Steel Corp., 15 N.J. 301 (1954), cert. denied, 348 U.S. 861, 75 S.Ct. 84, 99 L.Ed. 678 (1954). State and federal precedent have not since diverged. The New Jersey Supreme Court in Gore described the doctrine as "non-discriminatory," observing that it does not "turn on considerations of domestic residence or citizenship as against foreign residence or citizenship," but rather, "on considerations of convenience and justice." Id. at 311. For this reason, it may be applied both for and against both domestic and foreign plaintiffs. "It is true that under the doctrine an action by or against a resident will ordinarily not be dismissed as being in an inconvenient forum, but it is also true that ordinarily an action by or against a nonresident will not be dismissed as such." Ibid.

It is only in those exceptional cases where a weighing of all of the many relevant factors, of which residence is but part, decisively establishes that there is available another forum where trial will best serve the convenience of the parties and the ends of justice, that the doctrine is ever invoked. [Ibid.]

See also Civic Southern Factors v. Bonat, 65 N.J. 329, 333 (1974). Similarly, see Sinochem Int'l Co., Ltd., v. Int'l Shipping Corp., ___ U.S. ___, ___, 127 S.Ct. 1184, 1190, 167 L.Ed. 2d 15, 24 (2007); American Dredging Co. v. Miller, 510 U.S. 443, 447-49, 114 S.Ct. 981, 985-86, 127 L.Ed. 2d 285, 293-94 (1994); Piper Aircraft Co. v. Reyno, 454 U.S. 235, 241, 102 S.Ct. 252, 258, 70 L.Ed. 2d 419, 426 (1981).

A determination to dismiss an action on the equitable ground of forum non conveniens lies within the discretion of the trial judge, and thus a grant of such a motion is reviewed under an abuse of discretion standard. Kurzke v. Nissan Motor Corp. in U.S.A., 164 N.J. 159, 165 (2000); Civic Southern Factors, supra, 65 N.J. at 333. Accordingly, we are not free to substitute our judgment for that of Judge Higbee unless a clear misuse of her discretion is shown. Kurzke, supra, 164 N.J. at 165.

Merck, as the entity invoking the doctrine of forum non conveniens, bears the burden of establishing that New Jersey is not a convenient forum for this litigation. Piper Aircraft, supra, 454 U.S. at 255, 102 S.Ct. at 266, 70 L.Ed. 2d at 435. However, less deference is accorded to plaintiffs' forum choice in this case than would normally be accorded because of plaintiffs' residence in the U.K., not in this State. Id. at 255-56, 102 S.Ct. at 266, 70 L.Ed. 2d at 436. "When the home forum has been chosen, it is reasonable to assume that this choice is convenient. When the plaintiff is foreign, however, this assumption is much less reasonable. Because the central purpose of any forum non conveniens inquiry is to ensure that the trial is convenient, a foreign plaintiff's choice deserves less deference." Ibid.


The forum determination in this case requires a two-step analysis, commencing with an evaluation of whether the U.K. constitutes an adequate alternative forum in which the litigation can be brought. Gore, 15 N.J. at 305 ("a court may decline jurisdiction where there is available another forum where trial will best serve the convenience of the parties and the ends of justice"). "Ordinarily, this requirement will be satisfied when the defendant is 'amenable to process' in the other jurisdiction." Piper Aircraft, supra, 454 U.S. at 255 and n.22, 102 S.Ct. at 265 and n.22, 70 L.Ed. 2d at 435 and n.22 (quoting Gilbert, supra, 330 U.S. at 506-07, 67 S.Ct. at 842, 91 L.Ed. at 1061). However, in those "rare circumstances" in which the remedy offered by the alternative forum is "so clearly inadequate or unsatisfactory that it is no remedy at all," the requirement of an adequate alternative forum may not be met. Ibid.

In the present case, plaintiffs claim the existence of those "rare circumstances." Their argument is based on several factors, one of which being the lack of recognition, in the U.K., of plaintiffs' causes of action except those premised upon products liability resulting from design defect or failure to warn and upon wrongful death and survivorship ...

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