N.Y. City, State Join Suit Over Vioxx

September 19, 2007

New York State and City have sued Merck & Co. Inc., joining thousands of others who say the drug maker cheated government insurance programs by hiding the dangers of heart problems associated with its pain medication Vioxx.

The lawsuit, filed in Manhattan’s state Supreme Court, said the state’s Medicaid and Elderly Pharmaceutical Insurance Coverage programs have paid more than $100 million for Vioxx since 1999 when it was first marketed.

For its residents receiving Medicaid assistance, New York City paid a substantial share of those costs.

The lawsuit says the tens of millions of dollars paid for prescriptions and refills for patients with preexisting heart conditions would not have been spent had the risks associated with Vioxx been known.

The filing was announced by New York state Attorney General Andrew M. Cuomo and New York City Mayor Michael Bloomberg. They said the lawsuit marked the first time the city and state had joined forces to fight Medicaid fraud.

Merck removed Vioxx from the market in September 2004 because of its excessive risk for heart attack and stroke, court papers say.

Before stopping Vioxx sales, court papers say, Merck “undertook a concerted and tenacious campaign of false and fraudulent statements to minimize the import and seriousness” of the possible association between Vioxx and heart problems.

This “disinformation campaign” continued until a month before Merck ceased sales of the drug, causing New York doctors to continue writing prescriptions for Vioxx that they otherwise would not have written, according to the lawsuit.

Merck spokesman Kent Jarrell said the company researched and monitored the drug while it was on the market and voluntarily withdrew it when problems were suspected.

Jarrell said the medicine was properly labeled under the Federal Drug Administration’s direction and according to the science available at the time.

“We are confident that our behavior has been responsible,” Jarrell said, adding that similar lawsuits seeking reimbursement for insurance costs have been filed in “a handful” of other states.

Court papers say the lawsuit was brought to prevent “similar fraudulent and deceptive conduct in the future” by Merck and to get back the money spent by consumers and government agencies.

The lawsuit asks that Merck be ordered to pay New York City and the state three times their damages, to be determined at trial. It also asks that Merck be required to pay the state a civil penalty of $12,000 for each false claim, and $15,000 to the city for each such violation. The number of false claims would be determined at trial.

Merck, based in Whitehouse Station, N.J., faces almost 27,000 lawsuits from people claiming Vioxx caused heart attacks and strokes, but more than 1,170 cases have been dismissed. Of cases that have reached verdicts, Merck has won nine and lost five; a new trial was ordered in another case.

Jarrell said that before New York’s suit, Merck was facing state attorney general actions in Alaska, Louisiana, Mississippi, Montana, Texas, and Utah.

He said ll of the state lawsuits claimed that Merck misrepresented the safety of Vioxx and seek to recover Medicaid funds the states spent on the drug. The Alaska, Louisiana, Mississippi, Montana, and Utah cases are in a federal proceeding in New Orleans, and the Texas case is a state court in Austin.

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