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Michigan Loses Vioxx Case Against Merck

The State of Michigan cannot sue drugmaker Merck, Sharp & Dohme Corp. (Merck) for reimbursement of funds it's expended in connection with the drug Vioxx that was voluntarily withdrawn by Merck in 2004, according to a 2-1 decision by the Michigan Court of Appeals. Michigan was required to reimburse those who had purchased Vioxx under its Medicare and Medicaid programs and sought recovery of the money from Merck, claiming that Merck made fraudulent statements about whether Vioxx was associated with the risk of heart attack. Vioxx was subsequently withdrawn because of this risk. The case turned on whether Merck was shielded from liability by a Michigan law that provides that drug manufacturers are not liable for product liability claims if the drug in question has been approved by the Food and Drug Administration (FDA). Michigan was the first state to pass a law of this type, and other states are considering similar legislation.

Appellate Court Ruled in Merck's Favor

At trial, Merck requested that the court dismiss the case because Vioxx had been approved by the FDA and under Michigan law it could not be held liable. Michigan argued that law applied only to product liability cases and that the law was not intended to bar a state from recovering against a drug manufacturer. The trial court agreed with Michigan, and the ruling was appealed to the Court of Appeals. The appellate court agreed with Merck, reversed the trial court's decision and effectively dismissed the case. The Court of Appeals found that Michigan's reimbursement case against Merck was a product liability case covered by the shield law even though it did not involve the sale of pharmaceuticals from a drug company to individual users or consumers. Michigan tried to argue that because it was not actually using the drug, but just reimbursing those who did, its claims should not be barred by the drug shield law.

Decision Hinged on Michigan Law

For the present, in Michigan, they are. Maybe this is something the states should consider when passing proposed medical malpractice bills that include lawsuit protection for pharmaceutical companies. Not only consumers, but States as well can be prevented from suing pharmaceutical companies by this type of legislation.

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