New Jersey's Supreme Court will hear an appeal by Merck of a lower court ruling that would let health plans that paid for prescriptions of its withdrawn painkiller Vioxx sue as a class to recover billions of dollars.
The order, issued last week by the Supreme Court and made public late Monday, allows the Whitehouse Station-based drug company to appeal a unanimous March ruling by three New Jersey Appellate Division judges letting the lawsuit go forward.
The suit had been approved as a nationwide class-action lawsuit under the New Jersey Consumer Fraud Act by Superior Court Judge Carol E. Higbee (pic) in Atlantic City. Higbee is overseeing all Vioxx lawsuits in New Jersey, Merck's home state, where about half of the more than 16,000 Vioxx suits have been filed.
"We have long believed that it is not an appropriate case to be handled as a class action because the situation of each insurance company and HMO is so different from one another," Merck outside counsel Ted Mayer said in a statement. "Every member of the supposed class had different types of information in deciding whether to reimburse patients for Vioxx."
The International Union of Operating Engineers Local 68 Welfare Fund sued Merck in 2003, arguing its health plan would not have covered Vioxx prescriptions had Merck not concealed the cardiovascular risks of Vioxx, which cost several times as much as older, traditional anti-inflammatory medicines. Last July, Higbee certified the case as a class action.
The union's lead attorney, Chris Seeger, said he is confident he will win again in the appeal before the New Jersey Supreme Court.
"With trebling of damages and attorneys' fees, this could easily be over $15 billion to $20 billion" that Merck would have to pay, Seeger said. "This could be the showstopper for them."
He said health plans and unions "could have paid for naproxen or ibuprofen at a fraction of the cost" of Vioxx.
Unlike the Vioxx product liability trials that began last summer, the plaintiffs won't have to prove the one-time blockbuster arthritis pill harmed any patients.
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3 comments:
this whole FDA, Merck Vioxx issue is very frustrating for several reasons. Notwithstanding the issues real or not, related to hiding or unpublished data or misleading the FDA (which has its own fair share of problems). why was vioxx singled out. there is increasing data that all selective cox inhibitors have the same side effects yet celecoxib is still on the market and vioxx pulled. if you really want to get nit picky, acetaminophen kills more people each year than vioxx yet it is still sold over the counter. if used in the appropriate patient population these medications can be very effective and lifesaving.
A couple of points well made.
Indeed Tylenol is a killer when od'd. and the od can be small (in my clinical days I saw fulminant liver failure in a young adult who had taken 17 tablets).
And coxibs may well still be appropriate for some people. The choice to take them should be informed.
My main issue is about Merck's promotion of Vioxx as "a safe NSAID" for cardiac risk patients long after they knew that "Houston, we have a problem"!
For that alone they should be hung out to dry and get no sympathy from me!
I would raise the issue that Celebrex did not really demonstrate any benefit in the CLASS trial (unless you consider it good statistical practice to only consider the time period where you show a benefit and ignore the rest). In addition, I'm sorry to ask, but where were the doctors here? Don't they have a responsibility to be sceptical of drug claims too?
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