The New Jersey Supreme Court reversed class certification, thus limiting damages, in a suit against pharmaceutical giant Merck & Co. over its marketing of Vioxx, the painkiller recalled in 2004 after the FDA found it heightened the risk of heart attacks and strokes.

New Jersey's International Union of Operating Engineers Local No. 68 Welfare Fund sought class status for its suit that alleged Merck fraudulently marketed the drug to third-party payors like itself. Such nongovernmental funds, supported by organizations that offer health care benefits, often act as third-party payors, purchasing prescription drugs from pharmaceutical companies for members.

The plaintiff alleged Merck targeted the people who select drugs for such third-party payors' lists of approved purchases and intentionally gave false information on Vioxx, presenting the drug as safer and more effective than other traditional pain medications when Merck knew its product was “neither more effective nor safer than other available products.”

The Welfare Fund sought class status to join with other nongovernmental fund third-party payors. An expert testified that potential class members analyzed Vioxx information differently, thus making class certification inappropriate.

“The evidence about separately created formularies, different types of tier systems, and individualized requirements for approval or reimbursement … are significant,” the per curium decision read. “That evidence convinces us that the commonality of defendant's behavior is but a small piece of the required proofs [for class certification].”

In addition, the plaintiff sought reimbursement for more than $9 billion, unlike many class action plaintiffs who seek small damages and “for whom relief would otherwise not be practically available” unless they band together, the court said.