UK Vioxx victims

A court in the US state of New Jersey has declined an application for UK citizens, who claim that they have been harmed as a result of taking the arthritis drug Vioxx, to bring their cases against Merck & Co, the company that made the drug, in the U.S courts.

An application to The Honourable Carol E. Higbee, Judge of the Superior Court of the State of New Jersey, the state in which Merck are based, was declined yesterday (October 5 2006).

Merck removed Vioxx from the market in September 2004 when a long-term study showed it increased the risk of heart attack or stroke.

Lawyers representing victims of the drug have alleged that the drug was rushed onto the market without adequate testing.

It is argued that Merck had calculated that Vioxx was worth $889 million a year in sales if it reached the market first, and only $278 million if it followed Celebrex, a similar arthritis drug manufactured by rival pharmaceutical company Pfizer. Vioxx eventually reached $2.5 billion in annual sales before it was withdrawn.

Merck has consistently challenged the right of UK citizens to take legal action in the US over Vioxx.

Although UK claimants are entitled to commence legal proceedings in a US court, the court may decline to "accept" the cases if it considers it would be more convenient or suitable for the claimants to bring their cases to court in another state or country.

UK Vioxx claims

Sallie Booth from Irwin Mitchell solicitors, which represents nearly 100 claimants in the UK, said "This is hugely disappointing for UK victims of this drug. Whilst they should not be forced to look to a foreign jurisdiction to determine their cases, the restricted availability of funding for claimants in group actions in this country, especially public funding is having the effect of denying these people proper access to justice.

Ms Booth continued "However we will now carefully review all alternative options for our clients."

"Drug Companies must realise the huge responsibility they have to produce safe and reliable drugs. Profit cannot come before safety, their very business is to produce the solution they must not become the problem."

In the first case brought against Merck a Texas jury found pharmaceutical giant Merck & Co liable for the death of Robert Ernst (59), awarding his widow $253.4 million in damages. Mr Ernst, a produce manager at a Wal-Mart store, ran marathons and taught aerobics classes.

The second state case, which concluded in New Jersey in November 2005, found in favour of the manufacturers Merck. The claimant, Mr Humeston, was taking Vioxx for just 2 months before he became ill but his lawyers could not convince the jury that the drug was to blame.

The third claim and first federal case took place in the New Orleans Federal Court (sitting in Houston Texas as a result of Hurricane Katrina) was brought in February 2006 by Evelyn Plunkett following the death of her husband from a heart attack in 2001. Mr Plunkett had only taken Vioxx medication for 1 month before he died. The outcome of the original trial was a mistrial. At a subsequent hearing, the jury found that Merck was not responsible for the death of Mr Plunkett, was not negligent and did not provide inadequate warnings about Vioxx. Instead, Merck argued that Mr Plunkett's age, gender and obesity were causal of his heart attack.

The latest Vioxx case to be heard in the US concluded on 5th April 2006 in Merck's home state of New Jersey and delivered a split decision. The jury concluded that Vioxx was the cause of plaintiff John McDarby's heart attack and ordered the company to pay $4.5 m (£2.5) in compensation.

However the jury decided not to award compensation to the second plaintiff Thomas Cona, who claimed he took Vioxx for just under 2 years before his heart attack, but had only three prescriptions for the medicine over that time.

Do you have a claim? If you or someone you know has been affected by a similar case of being denied drugs for treatment, our solicitors can help. Visit our public law section.