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sMIGNACCA AND ELAINE MIGNACCA
Plaintiffs - and -
TCANADA LTD., MERCK FROSST CANADA & CO.
AND MERCK & CO., INC.
Defendants Court File No. 04-CV-045435 CP (ONTARIO)
SUPERIOR COURT OF JUSTICE
THE HONOURABLE "t0's, TUESDAY , THE 17th DAY
JUSTICE 1 af OF JULY, 2012
Proceeding under the Class Proceedings Act, 1992 ORDER
THIS MOTION made by the Plaintiffs for an order approving the settlement of this proceeding in accordance with a Settlement Agreement dated January 9, 2012 attached to this Order as Schedule "A" (the "Settlement Agreement"), and dismissing this action was heard this day at the Court House, 80 Dundas Street, London, Ontario.
AND UPON READING the materials filed, including the Settlement Agreement and on hearing the submissions of Lead Counsel and counsel for the Defendants:
THIS COURT ORDERS AND DECLARES that:
1. For the purposes of this Order the definitions set out in the Settlement Agreement apply to and are incorporated into this Order;
2. The settlement as set forth in the Settlement Agreement is fair, reasonable and in the best interests of the Class Members;
3. The settlement of this action on the terms set forth in the Settlement Agreement be and is hereby approved pursuant to section 29 of the Class Proceedings Act, 1992, S.O. 1992, c.
6 (the "CPA");
4. The Settlement Agreement in its entirety (including its preambles, recitals and exhibits) forms part of this Order, and has the full force and effect of an order of this Court;
5. The Settlement Agreement shall be implemented in accordance with its terms and is valid and binding on the Plaintiffs, Class Members and Defendants, including persons who are minors or are under a disability, as defined in the Rules of Civil Procedure ("Rules");
6. The need for service or notice of this or any further or subsequent steps in these proceedings on the Office of the Children's Lawyer or the Public Guardian and Trustee, as well as all other requirements in Rule 7 of the Rules, are hereby dispensed with;
7. This Order constitutes the full and final resolution of all Claims and Liabilities Connected With Vioxx, including, without limitation, all claims and causes of action raised by the plaintiffs or Class Members in all Vioxx-Connected Proceedings;
8. Each Plaintiff, each Class Member and all other Releasors (which term includes any one or more of them) shall be deemed to have Released and does hereby Release each Releasee from any and all Released Claims/Liabilities as set out in Section 5.1(1) of the Settlement Agreement;
9. The Releasors are forever barred and enjoined from directly or indirectly filing, commencing, prosecuting, intervening in or continuing any Action, whether in Canada or elsewhere, on their own behalf or on behalf of any class or any other person, in connection with any Released Claim/Liability;
10. In consideration of the payment of the Provinces Amount to be made by the Merck Parties in accordance with the Settlement Agreement, effective automatically upon, and as of (and as if granted upon), the Implementation Commencement Date (and without the
necessity of any further action on the part of any Province (as hereby defined to mean Her Majesty the Queen in Right of each of Ontario, British Columbia, Alberta, Manitoba, New Brunswick, Nova Scotia, Prince Edward Island, Newfoundland, Nunavut, the Northwest Territories and the Yukon (including without limitation all provincial or territorial Ministers of Health or equivalents, as well as all other departments, ministries and where appropriate agents), and all plans of such province or territory funding Medical Services and/or purchase of prescription drugs), each Province shall be deemed to have, and does hereby, (i) fully and forever, and irrevocably and unconditionally, Release each Merck Releasee from any and all Claims or Liabilities Connected With Vioxx which such Province may have ever had or asserted, may then have or assert, or at any time thereafter can, shall or may have or assert, against such Merck Releasee, whether directly, indirectly, derivatively, as subrogee or in any other capacity, and (ii) fully and forever, and irrevocably and unconditionally, Release each Non-Merck Releasee from any or all Claims or Liabilities Connected With Vioxx which such Province may have ever had or asserted, may then have or assert, or at any time thereafter can, shall or may have or assert, against such Non-Merck Releasee, whether directly, indirectly, derivatively, as subrogee or in any other capacity, to the extent (with respect to this clause (ii) (but not clause (i))), with respect to each such Claim or Liability, such Non-Merck Releasee would have a Claim (including but not limited to a claim for damages and/or contribution and/or other relief under the provisions of the Negligence Act or other comparable provincial legislation and any amendments thereto, the common law, Quebec civil law, or any other statute) against a Merck Releasee, or any Merck Releasee otherwise would have any Liability to such Non-Merck Releasee, with respect to (x) any assertion of such Claim or Liability described in this clause (ii) above against such Non-Merck Releasee or (y) any Liability imposed on or suffered by such Non- Merck Releasee with respect to such Claim or Liability described above in this clause (ii) (all such Released Claims or Liabilities (with respect to any particular Province) described in clauses (i) and (ii), collectively, the "Provincial Released Claims/Liabilities"). Without limitation of the preceding sentence, (A) effective automatically upon the Implementation Commencement Date, each Province will be forever barred and enjoined from continuing, commencing, instituting or prosecuting any
Action asserting against any Releasee any Provincial Released Claim/Liability, and (B) without limitation of the preceding clause (A), effective automatically upon, and as of (and as if granted upon), the Implementation Commencement Date (and without the necessity of any further action on the part of any Party or any Province), each Province hereby, to the extent that any Law may at any time purport to preserve such Province's right to assert at any time any unknown and/or unanticipated (or any other) Provincial Released Claim/Liability, waives (to the fullest extent permitted by applicable Law) such Province's rights under such Law;
11. Each Class Member shall consent and shall be deemed to have consented to the dismissal as against the Releasees of any Vioxx-Connected Proceeding he, she or it has commenced, without costs and with prejudice;
12. Upon the occurrence of the Implementation Commencement Date, each Vioxx- Connected Proceeding commenced in Ontario (other than the Certified Ontario Class Action) shall be and is hereby dismissed without costs and with prejudice; without limiting the generality of the foregoing, the following actions are dismissed without costs and with prejudice:
(a) Walsh et al. v. Merck Frosst Canada Ltd. et al., Court File No. 04-CV- 28938, Ontario Superior Court of Justice;
(b) Tanner et al. v. Merck Frosst Canada Ltd. et al., Court File No. 04-CV- 278643CP, Ontario Superior Court of Justice;
(c) Arseneau v. Merck Frosst Canada Inc., Court File No. 1389/02, Ontario Superior Court of Justice;
(d) Asturi et al. v. Merck & Co., Inc. et al., Court File No. 06-CV- 315896PD3, Ontario Superior Court of Justice;
(e) Covey v. Merck Frosst Canada Ltd. et al., Court File No. 05-CV-5667CM, Ontario Superior Court of Justice;
(f) Crawford et al. v. Porfiris et al., Court File No. 05-CV-298137PD1, Ontario Superior Court of Justice;
(g) Guisao et al. v. Merck Frosst Canada Ltd. et al., Court File No. 45/06, Ontario Superior Court of Justice;
(h) Kozlov v. Merck Frosst, Court File No. 06-CV-303602PD2, Ontario Superior Court of Justice;
(i) Marer et al. v. Merck Frosst Canada & Co. et al., Court File No. 06-CV- 319542PD1, Ontario Superior Court of Justice;
(j) Papasidero et al. v. Merck Frosst Canada & Co. et al., Court File No. 06- CV-319531PD1, Ontario Superior Court of Justice;
(k) Plaenk et al. v. Merck Frosst Canada & Co. et al., Court File No. 06-CV- 319534PD3, Ontario Superior Court of Justice;
(1) Shaw et al. v. Merck & Co. Inc. et al., Court File No. 06-26428, Ontario Superior Court of Justice; and
(m) Tarlow v. Merck Frosst Canada Ltd. et al., Court File No. 06-CV- 319538PD1, Ontario Superior Court of Justice.'
13. NPT RicePoint Class Action Services is appointed as Claims Administrator;
14. The Claims Administrator shall execute its obligations as set out in the Settlement Agreement;
15. For purposes of the enforcement of this Order, Justice Horkins or, if she is unavailable, another judge of this Court will retain jurisdiction, and the Defendants and all members of the class certified by this Court attorn to the jurisdiction of this Court for these purposes;
16. Michael A. Eizenga is appointed as referee for purposes of Appeals to this Court pursuant to the Settlement Agreement;
17. The Claims Administrator shall provide Class Counsel and counsel for the Defendants, who shall provide to the Court, a report at the conclusion of the administration of the claims process, with regard to payments made to Program Claimants;
18. The Defendants have no liability whatsoever with respect to the administration of the Settlement Agreement; and
1. List also to include any other Vioxx-Connected Proceeding commenced in Ontario (other than the Ontario Certified Class Action).
19. If the Settlement Agreement is terminated in its entirety in accordance with the
Settlement Agreement, then, without restricting the application of the provisions of the Settlement Agreement:
(a) this Order shall be set aside and be of no further force or effect; and
(b) all negotiations, statements and proceedings relating to the Settlement Agreement shall be deemed to be without prejudice to the rights of the Parties, and the Parties shall be deemed to be restored to their respective positions existing immediately before the Settlement Agreement was executed.
20. If the Settlement Agreement is partially terminated with respect to British Columbia, Alberta, Manitoba, New Brunswick, Nova Scotia, Prince Edward Island, Newfoundland, Nunavut, the Northwest Territories, and/or the Yukon but not in its entirety in accordance with the Settlement Agreement, then without restricting the application of the provisions of the Settlement Agreement:
(a) this Order shall be set aside and be of no further force or effect in relation to residents of the Affected Jurisdiction(s); and
(b) all negotiations, statements and proceedings relating to the Settlement Agreement shall be deemed to be without prejudice to the rights of the Parties with respect to the Affected Jurisdiction(s), and the Parties shall be deemed to be restored to their respective positions with respect to the Affected Jurisdiction(s) existing immediately before the Settlement Agreement was executed.
21. THIS COURT FURTHER ORDERS AND DECLARES that the plan for the publication and dissemination of the Approvals Notice, attached hereto as Schedule "B", 2 is approved and shall be performed; and the Approvals Notice, substantially in the form attached hereto as Schedule "C", is approved.
2: Schedule B will be in the Form of Exhibit 3.2(41-a to the Settlement Agreement.
22. THIS COURT FURTHER ORDERS that on the Final Settlement Payment Date, the within action shall be dismissed against the Defendants without costs and with prejudice.
.11
Justice
Ontario uperior Court of Justice
