Monday, 31 March 2008

A bitter pill…

Hundreds of British people who claim to have suffered harm from the withdrawn arthritis painkiller drug Vioxx have launched a campaign to challenge the manufacturer’s decision to only compensate US victims. The alleged Vioxx victims in the UK argue that they have been denied access to justice on both sides of the Atlantic because they were unable to bring a legal action in the UK where legal aid was not been available and in the US following the ruling of a New Jersey court to reject non-US claims.

In November last year the New Jersey based Merck announced plans to set aside $4.85 billion (£2.4 billion) for 44,000 US users of Vioxx. Although the painkiller was prescribed to 400,000 Britons at the time it was withdrawn in 2004 after studies showed an increased risk of heart attack and stroke to users. Independent research by the US Food and Drug Administration concluded that 27,785 heart attacks or deaths might have been caused by Vioxx between 1999 and 2004.

‘The government has a duty towards protecting the British public which has been harmed by a drug that was being marketed at large profit and licensed in this country and which has ended up harming several hundreds of thousands of people,’ comments Doctor Sarah-Jane Richards, senior associate at the South Wales firm Hugh James. Some 350 British claimants have formed a campaigning group and so far some 44 MPs have signed up to an early day motion backing their campaign. The campaign is calling for future legislation to prevent other non-UK companies treating UK residents in this way. ‘The case highlights an issue in law whereby people cannot get access to justice in this country,’ says Richards. ‘If you go to court and lose your case you are liable for the defence costs and, undoubtedly, an organisation like Merck would incur substantial multi-million pound costs to defend its product – that’s prohibitive of bringing cases like Vioxx to court in the UK.’

However Richards argues: ‘In an age where we have global markets it’s correct and proper for the pharmaceutical industry to compensate people wherever they live, wherever they have been harmed and whatever their nationalities.’ She reports that there was ‘outrage’ from the UK claimants who discovered that they lost their appeal in the US and were excluded from the American litigation in the same month that Merck offered compensation package to US nationals.

The Legal Services Commission pulled the plug on the UK litigation towards the end of 2005 complaining that the claimant firms Leigh Day & Co and Irwin Mitchell had not been forthcoming in providing an estimate of the costs of going to trial. This was disputed by those two firms at that time. ‘We weren’t prepared to write the solicitors a blank cheque,’ said David Keegan, director of the commission's special investigations unit at the time. The LSC has introduced tight controls to prevent the perceived haemorrhaging of public money on such multiparty actions. By direction of the Lord Chancellor, there now is only £3 million of public funds available for such litigation in any year and funding is also subject to an affordability review.

The claimant lawyers argue that the Vioxx litigation exposes a major funding gap in the system. The availability of conditional fee agreements to plug the hole left by legal aid is a non-starter, they argue, because the after-the-event insurance industry is either not prepared to back such complicated and potentially costly actions or, if it is, the premiums are prohibitively expensive.

Jon Robins.

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