Peterson v Merck Sharpe & Dohme (Australia) Pty Ltd (No.3) [2009] FCA 5

Peterson v Merck Sharpe & Dohme (Australia) Pty Ltd (No.3) [2009] FCA 5

The respondents' s 33N motion failed because substantial common factual and legal issues remained, including whether rofecoxib or Vioxx caused or increased the risk of pleaded cardiovascular conditions, what the respondents knew or ought to have known, and matters relevant to the Trade Practices Act claims; resolving those issues once and maintaining the existing discovery regime would be more efficient and effective than separate proceedings. The s 33ZF alternative failed because the applicant's pleaded case should define the trial issues and a separate inventory of common issues would add complication. The applicant's further discovery motion failed, except for the agreed production,...

Jurisdiction
Australia
Judgment Date
09 January 2009
Procedural Posture
Representative Proceeding Under Pt IVA of the Federal Court of Australia Act 1976 (cth) Concerning Alleged Injury From Vioxx / Reasons on Respondents' Motion Under Ss 33 N and 33 ZF and Applicant's Discovery Motion
Outcome
Respondents' motion dismissed; applicant's discovery motion dismissed except for consent production by the second respondent; costs reserved.
Legal Topics
['vioxx' 'rofecoxib' 'cardiovascular Conditions' 'representative Proceeding Continuation' 'common Issues' 'misleading or Deceptive Conduct' 'fitness for Purpose' 'merchantable Quality' 'defective Goods' 'discovery Categories']
['representative Proceedings' 'product Liability' 'negligence' 'trade Practices' 'civil Procedure' 'discovery'] ['vioxx' 'rofecoxib' 'cardiovascular Conditions' 'representative Proceeding Continuation' 'common Issues' 'misleading or Deceptive Conduct' 'fitness for Purpose' 'merchantable Quality' 'defective Goods' 'discovery Categories']

Case Brief

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Procedural Posture

Representative Proceeding Under Pt IVA of the Federal Court of Australia Act 1976 (cth) Concerning Alleged Injury From Vioxx / Reasons on Respondents' Motion Under Ss 33 N and 33 ZF and Applicant's Discovery Motion

Legal Issues

  1. 1 ["Whether the proceeding should no longer continue under Pt IVA because it would not provide an efficient and effective means of dealing with group members' claims or was otherwise inappropriate." "Whether the Court should identify and define with precision the common issues to be determined in the applicant's case under s 33ZF." 'Whether the first respondent should be ordered to give further discovery concerning Dr John Dickman, specified sales representatives, and the Australian Arthritis Advisory Board beyond existing discovery categories.' 'Whether the second respondent should produce identified documents from United States VIOXX litigation by consent.']

Ratio Decidendi

The respondents' s 33N motion failed because substantial common factual and legal issues remained, including whether rofecoxib or Vioxx caused or increased the risk of pleaded cardiovascular conditions, what the respondents knew or ought to have known, and matters relevant to the Trade Practices Act claims; resolving those issues once and maintaining the existing discovery regime would be more efficient and effective than separate proceedings. The s 33ZF alternative failed because the applicant's pleaded case should define the trial issues and a separate inventory of common issues would add complication. The applicant's further discovery motion failed, except for the agreed production,...

Court Disposition

Respondents' motion dismissed; applicant's discovery motion dismissed except for consent production by the second respondent; costs reserved.

Orders

  • ['The motion of which the respondents gave notice on 24 November 2008 be dismissed.' 'By consent, the Second Respondent to produce the discoverable documents identified in Exhibit "PS20" to the Affidavit of Paula Shelton sworn 27 November 2008, with the exception of the eight documents identified with the prefix...