Merck Australia wins appeal in Vioxx lawsuit

AP News
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Posted: Oct 12, 2011 2:28 AM
Merck Australia wins appeal in Vioxx lawsuit

An Australian court on Wednesday overturned a judgment that found the once-popular painkiller Vioxx doubled the risk of heart attack and was unfit for consumption.

The Federal Court's decision reverses a 2010 ruling that had found in favor of an Australian man who blamed the since-recalled drug for a heart attack he suffered. The court said the man, a former smoker, was susceptible to a heart attack independent of taking the drug.

The 2010 judgment _ which awarded Graeme Peterson 287,000 Australian dollars ($285,000) in compensation _ had opened the door for claims from hundreds of other litigants in a lawsuit against U.S. pharmaceutical giant Merck & Co. over the arthritis painkiller.

Vioxx was taken off the international market in 2004 after research showed it raised the risk of heart attacks and strokes. Merck, the world's second-largest drugmaker by revenue, later paid a $4.85 billion settlement to resolve about 50,000 lawsuits in the U.S.

Peterson sued Merck and its Australian subsidiary, Merck Sharpe & Dohme, arguing the painkiller was the cause of his 2003 heart attack, which left him unable to work.

In March 2010, Federal Court Judge Christopher Jessup found that Merck Sharpe & Dohme failed in its duty of care by not warning Peterson's doctor about the drug's potential cardiovascular risks, and by its sales representatives emphasizing the drug's safety. Jessup also concluded that the consumption of Vioxx doubled the risk of heart attack and was unfit for use as a pain reliever.

Merck Sharpe & Dohme appealed that decision. On Wednesday, the Federal Court in Melbourne ruled the 2010 judgment should be thrown out and said the drug company was not liable for damages. The money originally awarded to Peterson has been held by the court since the initial ruling, so there is nothing for him to pay back.

In their ruling Wednesday, the judges noted that the case against Vioxx was circumstantial, and there was no medical "signature" that proved Vioxx contributed Peterson's heart attack. The court said that Peterson _ a former smoker who was 51 at the time of the event _ was at risk of a heart attack independent of the medication.

"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," the judges wrote.

In a statement released by his lawyers, Peterson said he's disappointed in Wednesday's decision, but understood the case was a long process and the ruling was not necessarily the final step.

Lawyer Ken Fowlie of Slater & Gordon, the Australian law firm representing Peterson and the other members of the class action, said in the statement he would need to review the judgment carefully to determine whether Peterson will appeal the decision to the High Court of Australia, and what impact it may have on the approximately 400 other litigants in the case.

Merck Sharpe & Dohme praised the court's decision.

"The company is satisfied with this outcome, and is in the process of reviewing the full judgment," it said in a statement.