Landmark VIOXX class action judgment
On 5 March 2010, Justice Jessup of the Federal Court of Australia delivered his judgment in Peterson v Merck Sharp & Dohme (Australia) Pty Ltd, the first case in the Australian VIOXX class action to proceed to trial, and the first case outside the United States to result in an award of compensation to a claimant who suffered a heart attack after using VIOXX.
The lead applicant in the case is Graeme Peterson, a Melbourne man who suffered a heart attack after several years' use of VIOXX. Mr Peterson alleged that his VIOXX use materially increased his risk of suffering a heart attack, that Merck was or ought to have been aware of this increase in risk, and that Merck failed to adequately inform him or his prescribing doctors about the risk at any time before VIOXX was withdrawn from the market in September 2004. As a consequence, he claimed against Merck and its Australian subsidiary in negligence, and against the Australian subsidiary for breaches of sections 52, 74B, 74D and 75AD of the Trade Practices Act.
The trial of Mr Peterson's claim began in March 2009, and concluded in late June. Over 43 sitting days, the court considered hundreds of thousands of pages of evidence and heard from 25 witnesses, including several international experts on cardiology and epidemiology. In his judgment, Justice Jessup found that VIOXX about doubled the risk of suffering a heart attack, and that as a result, it was not fit for its purpose as an anti-arthritic drug. He found that Merck's Australian subsidiary, Merck Sharp & Dohme (Australia) Pty Ltd, was liable to pay Mr Peterson compensation pursuant to sections 74B and 74D of the Trade Practices Act. Justice Jessup also found that Merck Sharp & Dohme had breached its duty of care by failing to adequately warn Mr Peterson's prescribing doctor about the possibility that VIOXX could cause heart attacks once it became aware of worrisome signals to that effect from its clinical studies, and also through its sales representatives giving inappropriate emphasis to the safety of VIOXX when promoting it to Mr Peterson's doctors. Owing to circumstances specific to his individual claim, Mr Peterson was not able to succeed in his claims in negligence and under section 52 of the Trade Practices Act, however Justice Jessup left open the possibility that future group members will be entitled to compensation in respect of these claims. The claims of all group members under section 75AD of the Trade Practices Act and against Merck & Co., Inc., were dismissed.
Mr Peterson's victory is the first VIOXX claim to reach a judgment outside the United States, and the first time a court has ordered that compensation be paid to a person in respect of a heart attack caused or contributed to by VIOXX. The victory paves the way for potentially hundreds of other Australians who suffered heart attacks after using VIOXX to claim compensation.
The judgment is currently the subject of an appeal and cross-appeal, the outcomes of which are not expected to be known until at least 2011. While the appeal process is underway, the court has indicated that the claims of individual group members wishing to seek compensation for heart attacks can begin to advance.
Click here to read the judgment in full.
If you have been affected by VIOXX and wish to find out if you are eligible to take part in the case, please call our New Client Services department on 1800 555 777 or send us an email.
Being represented in the class action
The Peterson class action was commenced by Mr Peterson on behalf of a group of people who suffered particular injuries after using VIOXX. The March 2010 judgment clarified the kinds of claims that will be capable of being successful – in particular, it establishes principles that may assist the claims of individuals who suffered heart attacks while using VIOXX (or very shortly after stopping their VIOXX use).
Presently, you are a group member in the class action and may have a viable claim if you meet all of the following conditions:
- You obtained at least one prescription of VIOXX tablets from a doctor in Australia after 30 June 1999.
- After 30 June 1999, you completed at least one prescription of VIOXX tablets purchased in Australia.
- You suffered and were diagnosed with a myocardial infarction (heart attack).
- Your myocardial infarction occurred after you completed your first prescription of VIOXX but before the day 30 weeks after the date when you stopped taking VIOXX. You should note that you may satisfy this condition even if you were still taking VIOXX at the time that you suffered your injuries.
The deadline for opting out of the class action passed on 27 October 2006. If you are a group member and did not formally opt out of the case before then, you will be taken not to have opted out of the claim, and will, under Australian law, be bound by any judgment or determination made in the proceedings.
If you are a group member in the Peterson case, you are under no obligation to make a claim for damages in relation to your VIOXX use. However, your rights concerning any VIOXX-related injuries will be determined by the Peterson proceedings, so you will not be able to commence a separate claim for compensation based on your VIOXX use and injuries.
On 4 August 2010, the court ordered that group members who wish to advance an individual claim in relation to their heart attacks as part of the class action register their intention to do so before 4:00pm on 25 August 2010. If you do not register your interest to pursue a claim by 4:00pm, Wednesday 25 August 2010 you may not be able to make a claim in these proceedings. To find out more about how to register your intention to claim, please click here.
If you believe you are a group member in the Peterson case and wish to make a claim for damages, you should contact our office on 1800 555 777 or by email or seek independent legal advice as soon as possible.
Background
VIOXX was voluntarily withdrawn worldwide by the pharmaceutical manufacturer Merck, on 30 September 2004, after the company's own study found that VIOXX consumption was linked to an increased risk of heart attacks and strokes.
VIOXX, a "COX-2 inhibitor" designed to treat the pain and inflammation associated with arthritis, was approved for sale in 1999 and was widely proclaimed as having a lower risk of gastrointestinal problems than other anti-arthritic drugs (known as "COX 1 inhibitors"). Whilst that may have been true, VIOXX has been at the centre of controversies concerning its safety since at least March 2000, when a major study (the 'VIGOR' study) by Merck revealed a risk of heart attacks and strokes that was up to 5 times greater for VIOXX users than for users of naproxen (Naprosyn), a traditional non-steroidal anti-inflammatory drug. Merck claimed that this was due to naproxen's ability to protect people against the risk of heart attacks and strokes, rather than any deficiency of VIOXX. The study raised serious and troubling signals about the cardiovascular risks associated with VIOXX use, which it was necessary for treating doctors to be informed about, so that they could be factored into their prescription decisions.
By late September 2004, the situation became clearer, when a large-scale trial known as 'APPROVe' revealed a statistically significant increase in the risk of heart attacks associated with VIOXX use – in effect, definitively proving the existence of the problems suggested by the VIGOR study. The APPROVe trial tested VIOXX against a placebo, so there was no question of any involvement from a comparator such as naproxen. Once the heart attack results in APPROVe became known, Merck terminated the study and withdrew VIOXX from the market worldwide.
In the absence of clear warnings about the signals raised by the VIGOR study results, doctors and patients continued prescribing and using VIOXX until its withdrawal. As a result, thousands of people may have suffered serious injuries associated with their VIOXX use, and their doctors' decisions to prescribe VIOXX may have been made without a full understanding of the risks potentially associated with the drug.
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