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Vytorin Forum Postings Can Stay In Lawsuit, Judge Says

Jun 3, 2009 | Parker Waichman LLP

A judge in a Vytorin lawsuit has decided that some incriminating comments on an internet website frequented by pharmaceutical sales reps can be included in a lawsuit filed by Schering-Plough investors against the company.  According to Dow Jones Newswires, the lawsuit alleges that Schering-Plough executives withheld information that  Vytorin had failed in an important clinical trial.

Vytorin is a combination of the statin Zocor and the cholesterol-lowering drug Zetia.  The drug was marketed jointly by Schering-Plough and Merck & Co.  Vytorin has been under the microscope since the ENHANCE study, which found the drug was no better than a cheaper, generic statin in preventing clogged arteries, was released in January 2008.    Merck and Schering-Plough delayed releasing ENHANCE for more than a year –  the trial was actually completed in 2006.  

The ENHANCE controversy spawned well over 100 lawsuits that allege Merck and Schering-Plough were fraudulent by withholding the study results for so long.  Investigations are also being conducted in Congress, by the U.S. Justice Department and several state attorneys general.

According to Dow Jones Newswires, the investor lawsuit against Schering-Plough, which was filed in the U.S. District Court in New Jersey,  charges the company with violating securities laws by making false and misleading statements and omissions regarding ENHANCE that artificially inflated Schering's share price between 2006 and 2008.   Among the evidence plaintiffs' had wanted to introduce in the lawsuit were anonymous posting on the Schering-Plough section of the online forum that were made before ENHANCE was released, but after the study was completed.

The posting are incriminating.  According to Dow Jones Newswire, the author of a March 2007 comment claimed to have a "buddy" at Schering-Plough. "He says that the study is a bust," the post stated. Another post in 2007 stated, "Heard it crashed and burned!" A third, detailed post about the study stated, "Adding Zetia to high dose generic statin provides no real benefit," Dow Jones is reporting.

Schering-Plough had been trying to keep the posts out of the lawsuit.  According to Dow Jones, the company characterized CafePharma postings as the equivalent of "scrawls left on a men's room wall." Because they were anonymous, Schering-Plough also asserted that they could have been written by employees from a rival company,  people seeking to manipulate the firm's stock price or other "mischief  makers."

But the judge in the case has decided that the postings can be presented as evidence.  According to Dow Jones, the judge wrote that the postings. "are relevant to the ultimate issue" because they "purport to show the timing within which defendants became aware of the Enhance study's results."

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