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English claims against Vioxx manufacturer are on brink of collapse

BMJ 2005; 331 doi: (Published 01 December 2005) Cite this as: BMJ 2005;331:1292
  1. Clare Dyer, legal correspondent
  1. BMJ

    A compensation claim in the English courts against Merck, the US manufacturer of the withdrawn painkiller rofecoxib (Vioxx), looks set to be abandoned because the 500 claimants cannot get funding.

    An appeal against the refusal of legal aid was turned down this week, and hopes for a no win, no fee deal backed by insurance have been dashed.

    If the case went ahead on a no win, no fee basis, insurance would be necessary to cover Merck's estimated costs of £5m ($8.6m; £7.3m) if the claimants lost. Insurers will sometimes agree to take a deferred premium—collecting a premium after the event only if the claimants win—but in this case they will do so only up to £250 000 in costs.

    Martyn Day, solicitor for 200 of the claimants, said the case was the strongest against a drug company he had seen for 10 years. “If this case can't get into the courts here, then I don't know what will.” He predicted that the failure to secure funding heralded “the end of litigation against drug companies in the UK.”

    Daniel Brennan QC, a Labour peer who has appeared as counsel for claimants in some of the biggest product liability cases, said there was “a serious risk” that such litigation could no longer be mounted in the UK.

    The claimants' hopes now centre on joining the 7000 lawsuits filed over rofecoxib in the US, but Merck has filed a motion to have foreign cases thrown out on the grounds that they should be heard in the claimants' home countries.

    “There's a real chance that we will simply end up in some mid-Atlantic limbo land where we can't get funding here, we can't get the cases going here, and at the same time we get thrown out in the US. So British people end up with no justice, no recompense,” said Mr Day.

    Mark Harvey, one of the lead solicitors for a handful of UK cases filed in the US, said the legal aid refusal “can only strengthen our prospects of keeping the cases in the New Jersey court, home of Merck.”

    He said, “If there is no realistic forum for access to justice in the UK then a US court will be extremely slow to prevent the UK victims from seeking a remedy against the company alleged to be responsible in its own court.”

    Rofecoxib, which was prescribed mainly for arthritis, was withdrawn from the market last year by Merck when a study showed an increased risk of heart attack or stroke if it was taken for 18 months or longer.

    Of the two cases concerning the drug that have gone to trial so far in US state courts, Merck has won one and lost one. A third trial, the first in a federal court, started this week in Houston, Texas.

    Merck said in a statement: “We believe we have meritorious defences, and we intend to vigorously defend individual Vioxx cases one by one.”

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