Britons injured by faulty drugs are being left without compensation by serious failures in the system for funding cases, lawyers said yesterday after a US court threw out 300 British claims over the withdrawn arthritis drug Vioxx.
The claimants, who had strokes and heart attacks after taking the drug, went to the New Jersey courts after twice being refused legal aid to sue the American maker, Merck, in the British courts.
But Judge Carol Higbee of the superior court of New Jersey refused them permission this week to go ahead in the state, where Merck has its headquarters. She ruled that the British legal system would provide sufficient redress and a US jury should not be expected to comprehend a foreign system of drug regulation.
The claimants' British lawyers say this leaves them with no way to sue. They have looked at a no-win, no-fee action, but without insurance the claimants' homes and life savings would be at risk if they lost and had to pay Merck's costs. Insurance companies will provide cover for only £1m in costs and the case is predicted to cost at least £4m. In Britain, unlike the US, the loser pays the winner's legal bills.
Martyn Day of law firm Leigh Day & Co, which with two other firms filed 200 Vioxx cases in the US, said: "We are in a total quandary. I am totally stumped as to how we can get these cases into the courts anywhere." He said the Vioxx case was "the strongest drug-related case we've seen in the UK for a long time" and the situation left little hope for other drug cases.
Merck voluntarily took its blockbuster arthritis drug off the market in October 2004, saying a new trial indicated it raised the risk of heart attack and stroke. Merck's lawyer, Ted Mayer, said of Judge Higbee's decision: "We believe this is the correct ruling. The United Kingdom courts are more appropriate than New Jersey because the plaintiffs live there, they were prescribed the medicine there, they ingested it there, they were treated there, their medical records are there, and their physicians live there."
Gerard Dervan of MSB solicitors in Liverpool, which has about 65 Vioxx cases, said suing in the US had been the "only viable course of action". Those affected were generally elderly people with arthritis who were no longer working, he said. Merck, on the other hand, had put aside $900m for litigation, not compensation.
"The British taxpayer paid for these drugs that were defective and the money was repatriated to New Jersey," said Mr Dervan. "The NHS is now left looking after these people, who need more care following heart attacks and strokes."
Christine Peckham, one of his clients, was 49 when she had two strokes that left her epileptic and registered blind. She had no obvious risk factors - she was not obese and did not drink or smoke - but had taken Vioxx every day for 22 months.
She was "saddened and angry" about the ruling. "How can this be putting patients first when they are just throwing us to one side? We're here in the UK and they will take our money for the drugs they sell over here, but they don't care about us."
The Vioxx claims are not the only drug cases endangered by a squeeze on legal aid, the Guardian has learned. Children of epileptic mothers who blame injuries suffered in the womb on an anticonvulsive drug taken during pregnancy, and people affected by the antidepressant Seroxat, are fighting to have funding restored.
FAQ: Cox-2 inhibitors
What is Vioxx?
Vioxx is one of a class of drugs called Cox-2 inhibitors which reduce the inflammation and pain associated with arthritis. It was licensed in 1999 in the UK, and marketed as a safer alternative to the older style non-steroidal anti-inflammatories, which could cause gastric bleeding.
How many people took it?
At least a million in the UK took Vioxx and the rival drug which was licensed shortly afterwards, Pfizer's Celebrex.
When did Merck know there was a problem?
According to a study published by the Lancet, Merck had data showing increased heart attacks and strokes in 2000, four years before Vioxx was withdrawn.
