Justice Spomer

Alan Dixon

The Illinois Appellate Court ruled that St. Clair County Circuit Judge Michael O'Malley erred in denying a motion to transfer a Vioxx class action lawuit to Cook County.

In a 2-1 decision, Justice Spomer stated that drug manufacturer Merck did not design, manufacture or produce its products in St. Clair County.

He wrote for the majority that the appeal involved a "pure question of law" in a lawsuit filed by Doris Rensing against Merck on Oct. 1, 2004. The suit came one day after Merck pulled the popular arthritis pain reliever from the market after a study showed Vioxx increased the risk of heart attack and stroke if taken for more than 18 months.

The appellate court has transferred Rensing's consumer fraud class action lawsuit to Cook County. In total, Merck faces approximately 16,000 Vioxx lawsuits throughout the country.

Spomer wrote that there was no dispute at trial that Merck was not a resident of St. Clair County.

"Because the residence and transaction prongs of the venue statute are not met in this case, the circuit court erred in denying the defendant's motion to transfer for improper venue," he wrote.

Justice Terrance Hopkins concurred with Spomer.

Justice Melissa Chapman dissented, stating, "I disagree with the decision of my colleagues. I believe that the purchase and ingestion of Vioxx in St. Clair County is sufficient to establish venue under the transactional prong of the venue statute."

On Jan. 31, 2005, Merck removed Rensing's case to federal court. However, it was remanded back the very same day.

On Feb. 16, 2005, Merck filed a motion to transfer the case for improper venue. In its motion Merck claimed that it is incorporated under the laws of New Jersey, with its principal place of business in New Jersey.

Former U.S. Senator Alan Dixon and Dan Ball of Bryan Cave in St. Louis represented Merck.

Merck's registered office and agent in Illinois exist in Cook County.

Merck argued that because it did not have any manufacturing plants, facilities, or operations in St. Clair County and does not make any significant decisions concerning the design, manufacture, marketing, or promotion of Vioxx in St. Clair County, it does not transact its usual and customary business within St. Clair County for venue purposes.

Merck also argued that no significant part of the transaction at issue had occurred in St. Clair County for venue purposes.

A manager for Merck submitted an affidavit that claimed the percentage of nationwide sales of the drug in St. Clair County was 0.16%

In response, John Driscoll of Brown & Crouppen, who represents Rensing, argued Merck's promotion, marketing, and/or selling of Vioxx within St. Clair County was sufficient to establish venue because Rensing was induced into purchasing the Vioxx in St. Clair County.

Rensing filed an affidavit claiming that she was prescribed, purchased, and ingested Vioxx in St. Clair County, that she has never had any direct dealings with the defendant in Cook County, and that she never was prescribed, had never purchased, and had never took Vioxx in Cook County.

On May 19, 2005, O'Malley denied Merck's motion to transfer the case. Merck appealed.

Spomer cited Section 2-101 of the Illinois Code of Civil Procedure and Section 2-102.

"Any private corporation organized under the laws of this State is a resident of any county in which it has its registered office or other office or is doing business," Spomer wrote.

"There is no dispute that the defendant is not a resident of St. Clair County and has no offices there. It was not contested in the trial court and is not contested on appeal that the plaintiff purchased and ingested Vioxx in St. Clair County."

"Accordingly, we reverse the order of the circuit court. Because there is no dispute that the residence prong of the venue statute is satisfied in Cook County, where the defendant has a registered agent, we will exercise the powers granted us under Supreme Court Rule 366(a)(5) (155 Ill. 2d R. 366(a)(5)) to enter an order transferring this cause to Cook County for further proceedings pursuant to section 2-106 of the Code (735 ILCS 5/2-106 (West 2004))."

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