Merck Loses Australian Vioxx LawsuitMar 5, 2010 | Parker Waichman LLP
We just wrote that Merck & Co. made a final $4.1 billion payment to its Vioxx settlement fund. According to a recent Associated Press (AP) report, final payouts to former Vioxx users or their survivors should be made by the end of June.
Now, Bloomberg News is reporting that Merck & Co.’s Australian unit neglected to warn a physician about cardiac risks associated with the controversial painkiller, citing the findings of a Melbourne court. The drug giant could be ordered to pay the equivalent of about $261,000 in damages, noted Bloomberg News.
Graeme Robert Peterson, 59, was awarded A$287,912—$259,000 in U.S. dollars—as well as interest, in his case against Merck Sharpe & Dohme (Australia) Pty, according to the plaintiff’s legal firm, said Bloomberg News. According to Bloomberg, the court found that the painkiller contributed to a heart attack Peterson suffered in 2003, citing the judgment. Merck issued a statement saying it would appeal the finding.
Vioxx was approved for use in 1999, and quickly became a bestseller for Merck, with annual sales of $2.5 billion; however, the painkiller was pulled off the market in 2004 after an analysis of patients using Vioxx linked the defective drug to more than 27,000 heart attacks or sudden cardiac deaths in the U.S. from 1999 through 2003. The withdrawal prompted thousands of product liability lawsuits that claimed Merck didn’t properly warn doctors and patients of the drug’s risks. To settle most of those suits, Merck established a $4.85 billion fund in November 2007. Merck set up a $4 billion fund for people who claim they suffered heart attacks as a result of Vioxx, and another $850 million fund for those who suffered ischemic strokes. The settlements were awarded on an individual bases, and the amount of money each plaintiff ultimately receives will vary.
In the United States, according to the AP, all Vioxx heart attack claims have already been paid or denied. Nearly 18,000 Vioxx stroke claims are in process, and about 7,400 of those resulted in initial payments. The AP also recently reported that about 355 plaintiff groups did not join the settlement; those lawsuits are still pending. Merck faces four Vioxx lawsuits this year, two bought by patients who didn’t participate in the settlement and two aimed at recovering costs related to use of the painkiller, the AP said.
The decision in Australia is the first outside of the U.S. and the first class action concerning Vioxx, according to Bloomberg News, citing plaintiffs’ attorneys.
Recently we wrote that a study found that evidence of cardiovascular risks linked to Vioxx might have been realized nearly four years before Merck pulled the drug from the market. Also, since its withdrawal, revelations about the way in which Merck marketed Vioxx have raised serious questions about the firm's conduct. For instance, a prior Australian Vioxx trial revealed that Merck paid nurses to look through medical records in search of potential Vioxx patients—without obtaining physician permission—in the hopes of garnering 100 patients per doctor, explained BNET previously. Merck also apparently put on a year-end “skit” in which sales reps mocked the Journal of the American Medical Association, which published an article discussing Vioxx and issues with its cardiovascular side effects, said BNET.
One of the most shocking tactics used by Merck to push Vioxx in Australia involved the use of a fake medical journal, published by Elsevier, offering it like other peer-reviewed medical journals. The articles reprinted or summarized articles, all presenting Merck products, including Vioxx, favorably.