Articles Posted in Merck & Co.

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Merck can proceed with a lawsuit against the Kentucky Attorney General for violating its constitutional due process rights in its claims against Merck involving Vioxx. Why? A federal judge has found that Kentucky improperly struck a contingency fee arrangement with plaintiffs’ lawyers to bring a lawsuit against Merck for their marketing of Vioxx.
Is this a new trend? Last year, a South Carolina judge allowed a similar claim by AstraZeneca against the South Carolina AG. My question for Merck and AstraZeneca is whether the juice is really worth the squeeze. If you are Merck, you can’t be happy about anything that happened with Vioxx other than the fact that you settled the cases for a few billion less than you originally throught. Is it possible that you are losing the war even if you win this petty technical battle with Kentucky? I don’t think you gain a ton of moral high ground by screaming that you sued me for doing something wrong with the wrong lawyers. I can’t see John Q. Public covering your back on this. You have a lot of great products that are not hurting people. Spend your time talking about them and let your mistakes fade away.
Pharmalot has more on the story.

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Let’s face it: the bellwether Foxamax trials are going very poorly for Fosamax plaintiffs and their lawyers. Very poorly.

Merck won another jury trial, this time in New York, which blamed osteoporosis drug Fosamax for jaw and dental injuries. This is Merck’s fourth Fosamax victory in five tries. The other: an $8 million verdict (reduced to $1.5 million).

There is no question that these cases have value. Even assuming this abysmal 20% rate is indicia of what we can expect in the future, do the math. These cases have meaningful value. That said, if there is a global settlement of the remaining 2,000 cases, every loss chips away at the value of plaintiffs’ claims.

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A Southern District of New York judge has granted defendant’s remittur motion after an $8 million verdict in a Fosamax trial, leaving Plaintiff’s attorneys with a tough choice: take the $1.5 million remittur or take a new trial. It is like kicking a field goal while there is a penalty on the defense, that gives the kicking team an automatic first down. Do you take the points off the board? For Plaintiff’s lawyers, their advice depends on where Plaintiff is on the figurative field. The question is what is the settlement value of the case? If it is less than $1.5 million, it is a good ‘settlement” that you have to take, even while grinding your teeth.

In an unrelated event, Plaintiff’s lawyer was sanctioned by the court for referencing another Fosamax trial after the trial judge specifically warned him not to do so, which Plaintiff’s attorney knew anyway as an experienced trial lawyer. He also said that what Fosamax manufacturer Merck did was “reprehensible” and “disgusting” in his closing argument.
Were these sanctions warranted? With respect to referencing other Fosamax lawsuits and trials, I think it really depends on the context and the intent which is hard to surmise unless you were actually there. But I don’t thinking calling Merck “reprehensible” and “disgusting” in closing argument comes anywhere near a sanctionable offense. Plaintiff’s lawyer is arguing that this is awful and that negligence is not even a close call. As a matter of trial tactics, I think this is a bad idea because the jury can figure out on their own if the conduct is reprehensible or disgusting. My thinking is, just lead the horses to the water and let them drink it themselves. But that is a trial tactic question. I don’t see why this is worthy of sanctions.

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Here are this week’s stories:

  • Vioxx: See Shearlings Got Plowed for a quick summary of the Australian Vioxx trial. Good news.
  • Defibrillator Battery Recall: 5,418 battery packs used in Lifeline AED and ReceiveR external defibrillators are recalled. See the FDA’s notice.
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The next Fosamax trial, alleging osteonecrosis of the jaw, is likely starting this upcoming Monday, with jury selection today (HT: Shearlings Got Plowed). The case will go before the U.S. District Court for the Southern District of New York (Manhattan).
In the Maley case, Merck tried to obtain a dismissal based on inadequate specific causation, but that attempt failed back in January. Merck contends that the plaintiff does not have osteonecrosis of the jaw but, instead, has a condition known as neuralgia-inducing cavitational osteonecrosis (NICO). Specific diagnosis of plaintiff’s condition is likely to be a big issue at trial.
For more on Fosamax, see prior posts of the Drug Recall Lawyer Blog.

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Zocor-Timeline-03-23-10.jpgThe results of a new study are out, which show the dangers Zocor in high doses or in conjunction with other drugs. Zocor is indicated as one component of multiple risk factor intervention for people at significantly increased risk of atherosclerotic vascular disease due to hypercholesterolemia. Evidence shows that high levels of Zocor, more so than similar cholesterol-reducing drugs (statins), can cause myopathy and rhabdomyolysis, which can cause severe kidney damage, kidney failure, and death. If this evidence, keeps coming, don’t be surprised to see a Zocor recall or withdrawal (or Merck simply stops putting new product on the shelves). In fact, more evidence has accumulated about Zocor since this blog post in 2010 and our lawyers are not reviewing potential Zocor lawsuits

Myopathy is a muscular disease that causes muscular weakness. Rhabdomyolysis is a very specific type of myopathy, the rapid break down of skeletal muscle due to muscle tissue injury. The broken down material can be released into the bloodstream and may cause acute kidney failure. Signs and symptoms for myopathy include unexplained muscle fatigue, muscle pain, tenderness and an elevation of a muscle enzyme in the blood (creatine kinase). Rhabdomyolysis is often characterized by fatigue and dark or red urine, in addition to the symptoms of myopathy.

In the trial (known as SEARCH), patients taking an 80mg dose were compared to patients taking a lower 20mg dose. 52 patients taking the higher dose developed myopathy, compared to one patient taking the lower dose. Eleven patients taking the higher dose developed rhabdomyolysis, compared to zero patients taking the lower dose.

Merck is hiding the ball somewhat—at first glance, it appears to have no comment—the Zocor website was removed (though, to be fair, I’m not sure when it was taken down). It’s a shame they couldn’t use the website to provide comprehensive information to their customers who no doubt have heard the bad news about Zocor and may want some guidance. But, for intrepid customers who dig a little deeper there is a small statement at Merck’s main website, stating that:

We support the FDA’s recommendation that patients continue taking their medication as prescribed by their physicians, and that patients speak to their physician if they have symptoms or questions.

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Drug Recall Lawyer Blog Round-Up (03-22-10)

Here are this week’s stories:

  • Avandia: The MayoClinic investigated who authored articles supporting Avandia in medical journals, and discovered that 90% had ties to the manufacturer, GlaxoSmithKline (HT: FiercePharma).
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To follow up on our March 2, 2010 post BigPharma Goes All “Social Media” is a website that features all comments submitted to the FDA on the social networking question. A somewhat more readable version (though, less complete) is at www.fdasm.com.

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Some interesting news to follow this week:

  • Vioxx: The Pop Tort reports on how “lawsuits played a key role unearthing documents showing what lengths Merck went to cover up mounting evidence that patients taking Vioxx were experiencing a high number of heart attacks and strokes.” Now, Vioxx manufacturer Merck settles some shareholder lawsuits, and includes some proactive measures to protect against these abuses in the future.
  • Medical Radiation: Much continues to be written about radiation as it relates to diagnostic procedures, especially in the wake of the FDA’s newest guidelines. The Mass Tort Defense Blog opines that plaintiffs’ lawyers seeking medical monitoring for their patients may do more harm than good on the basis that it will increase radiation exposure. There is some logic to this, but shouldn’t patients be the ones to choose?
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Fosamax%20pills-02-05-10%29.gifAs you remember, Fosamax, Merck’s osteoporosis drug, is the subject of much litigation. The question presented is whether the drug causes osteonecrosis of the jaw, which is the death of jawbone tissue.

Judge Keenan, ruling over the federal Fosamax cases from his bench in the U.S. District Court for the Southern District of New York (Manhattan), decided that Merck was not entitled to dismissal of the Louise Maley case on the issue of specific causation (essentially, Merck argued that plaintiff could not prove that Fosamax caused her injury. This is different from general causation, which is the argument that Fosomax can cause injuries of this type). The plaintiff did not argue against dismissal of her strict liability and warranty claims, however. Her case will proceed on a failure to warn claim. See the Order (hat tip: Shearlings Got Plowed). The Maley case will go to trial on April 19, 2010.

So, Plaintiff Maley survived where Bessie Flemings could not—Judge Keenan dismissed her case (set for trial this month) last November on specific causation grounds.