In 2010 an Australian law court found in favor a man who blamed the recalled drug for a heart attack he suffered. That ruling now seems to have been overturned in appeal; a win for Merck and its problem Vioxx product.
Vioxx which was removed from the market in 2004 had Merck paying out nearly five billion dollars in settlements after research showed those taking the medication had nearly a double risk of heart failure.
In the Australian case from 2010, Graeme Peterson was awarded $285,000 in compensation and potentially exposed Merck to hundreds of similar claims. Peterson sued Merck and its Australian subsidiary Merck Sharpe & Dohme putting forward the case that Vioxx was the cause of the heart attack which left him unable to work.
Although Federal Court Judge Christopher Jessup found during the original trial, that Merck Sharpe & Dohme failed in its duty of care by not warning Peterson’s doctor about the drug’s possible cardiovascular risks, Merck Sharpe & Dohme appealed the decision against them.
The court ruled today (Wednesday) that evidence against Vioxx was circumstantial at best and the previous judgement should be overturned.The money awarded to Peterson has been held by the court pending appeal and will now be returned to Merck.
The judges noted that there was no evidence of a “medical signature” that proved Peterson’s heart attack was entirely due to Vioxx and as a smoker aged 51 at the time, he had substantial risks beyond taking Vioxx that contributed to his heart attack.
The judges wrote :
“We are unable to see how it can be said that it is more probable than not that Vioxx, whether alone or in combination with Mr. Peterson’s personal risk factors, was a necessary condition of the occurrence of his heart attack.”
Peterson issued a statement via his legal team Slater & Gordon that he was disappointed with the ruling but it was not necessarily the final step. Ken Fowlie from the law firm clarified that he would need to study the judges ruling in detail to consider the merits of pursuing an appeal with the Australian High Court. The firm will also need to review the effect it will have on around 400 other litigants who are part of a class action lawsuit in similar proceedings against Merck / Vioxx.
Merck Sharpe & Dohme were obviously satisfied with the court’s decision stating :
“The company is satisfied with this outcome, and is in the process of reviewing the full judgment,” it said in a statement.
Written by Rupert Shepherd