Merck Sharp & Dohme (Australia) Pty Ltd v Peterson: Heart Risk and Vioxx

In a decision this morning, the Full Court of The Federal Court overturned the award of a compensation payment for the failure by Merck to warn of the risk of heart disease with their anti-arthritic drug, Vioxx.

Mr Peterson sued Merck claiming he was unable to work due to a heart attack caused by his medication and due to Merck’s negligence in not revealing the risks associated with the drug. Mr Peterson also claimed that Merck engaged in misleading and deceptive marketing tactics including bombarding doctors who were negative to the drug with sales calls, as well as faking a medical journal promoting the company’s products.

Merck appealed against the decision of the primary judge challenging his Honour’s conclusions on the issues of causation, negligence and contravention of the Trade Practices Act 1974 (Cth), now the Competition and Consumer Act 2010 (Cth).

The Court, on appeal, ruled against the respondent, Mr Peterson, claiming that the state of scientific or technical knowledge at the time the drug was supplied to Mr Peterson was not sufficient to enable Merck to know of the defects or risks posed.

The case will like be instrumental in defining the liability of pharmaceutical companies when manufacturing new drugs.

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