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Florida AG Sues Merck for Misleading Marketing

Oct 1, 2008 | Parker Waichman LLP

Earlier this week, Florida Attorney General Bill McCollum sued Merck and Company, Inc. for damages caused by the company’s allegedly deceptive marketing and promotion of its prescription drug, Vioxx.  The lawsuit states that Merck repeatedly failed to disclose Vioxx’s adverse effects while offering it to Florida’s Medicaid program as a safe painkiller.  The Attorney General’s office is charging the Merck violated Florida’s Deceptive and Unfair Trade Practices Act.

Vioxx is a non-steroid anti-inflammatory medication used to treat joint pain and was one of the most widely prescribed and advertised drugs until it was removed from the market in 2004 for serious adverse effects.  The lawsuit follows a three-year investigation of Merck’s promotional practices as they relate to Vioxx and alleges that, due to Merck’s marketing practices, many state agencies approved Vioxx as a covered or approved drug and agreed to pay for the prescription or reimburse its expense. Vioxx purchases by the Florida Medicaid program exceeded $80 million between 1999 and 2004.

The Attorney General’s lawsuit claims Merck’s expensive promotional campaign was developed to convince consumers that the drug was not only safe, but that consumers should demand Vioxx from their health care professionals for pain treatment.  Merck also allegedly attempted to intimidate physicians and researchers who questioned Vioxx’s safety and may have misrepresented or concealed published evidence, including its own, which detailed Vioxx’s possible harmful side effects.  Merck removed its blockbuster arthritis drug Vioxx (Generic: Rofecoxib) from the market worldwide because clinical trial data found an increased risk of heart attack and stroke, blood clots, and other cardiovascular complications.

The Attorney General argues that if the truth about Vioxx had been known earlier, physicians and their Medicaid patients would have chosen other, less expensive prescriptions. The lawsuit demands restitution to the State of Florida, plus interest, for all state program payments, which includes Medicaid reimbursements, that were made for Viooxx prescriptions and is seeking additional civil penalties of up to $10,000 per violation of the law.

Meanwhile, the Associated Press recently reported that partial payments were being initiated to those people who claim that taking Vioxx caused them to suffer heart attacks as part of the $4.85 billion settlement between drug maker Merck & Co. and plaintiffs' lawyers.  This payment mailing comprises about 40 percent of each plaintiff’s estimated total payout; it remains unclear how many plaintiffs will be receiving payments in this initial batch.  The settlement is meant to end the majority of the personal injury lawsuits filed against Merck last November.  Three years prior, Merck pulled Vioxx after its research confirmed Vioxx doubled the risk of heart attack and stroke.

The amount of eligible, registered claimants is now at 49,954, which comprises over 97 percent of claimants eligible for the settlement.  This eligible pool is well above the threshold levels required for the deal to proceed.  According to the AP report, Merck waived its right to walk away from the settlement on August 4 and deposited $500 million in one escrow account and gave claims administrators a letter of credit worth up to $4.1 billion to cover payments to claimants.

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