SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

Phyllis Sinclair v. Merck & Co., Inc. (A-117-06)

Argued October 22, 2007 – Decided June 4, 2008

WALLACE, J., writing for a majority of the Court.

In this products liability case the Court considers whether plaintiffs may recover the costs of medical monitoring despite their failure to allege a physical injury.

This litigation arises from the use of Vioxx, a prescription drug manufactured and sold by Merck. On May 20, 1999, Vioxx was approved for sale by the United States Food and Drug Administration (FDA) for the relief of the signs and symptoms of acute pain, dysmenorrhea, and osteoarthritis. Five years later, on September 30, 2004, the FDA acknowledged the voluntary withdrawal from the market of Vioxx. The FDA explained that the withdrawal came after a board overseeing a long-term study of the drug recommended the study be halted because of an increased risk of serious cardiovascular events, including heart attacks and strokes, among patients taking Vioxx.

Since the withdrawal of Vioxx from the market, numerous plaintiffs have instituted lawsuits against Merck alleging cardiovascular injuries due to Vioxx. In November 2004, plaintiffs filed a class action complaint against Merck and various other parties. Plaintiffs alleged negligence, violation of the Products Liability Act (PLA), violation of the Consumer Fraud Act (CFA), breach of warranties, and unjust enrichment. Plaintiffs brought the action on behalf of a proposed national class of individuals who ingested Vioxx and who may suffer from serious silent or latent injury for which they may require medical monitoring.