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More than 50 cases pending, including Missouri’s Western, Eastern districts
Recent controversy surrounding the cholesterol pill Vytorin has attorneys across the country filing lawsuits and scrambling for class action status.
Since a study was released about two weeks ago questioning Vytorin’s ability to reduce plaque buildup in the arteries, more than 50 lawsuits have been filed in U.S. federal courts against the drug’s manufacturers, Merck & Co. and Schering-Plough Corp. Numerous lawsuits also have been filed in state circuit courts.

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Missouri attorneys also are getting into the act. This week, a federal lawsuit was filed in Missouri’s Western District seeking more than $5 million in damages. And a lawsuit filed in Missouri’s Eastern District last week is demanding $1 billion from the drug’s makers. Both lawsuits are seeking class action status for Missouri residents.
Two similar federal lawsuits have been filed in Kansas federal courts. There also have been four lawsuits filed in Missouri’s circuit courts stemming from the Vytorin controversy: Three in St. Louis area courts, and one in Jackson County.
While the legal claims for the suits differ, they all revolve around the Jan. 14 release of a medical study showing that Vytorin, a combination of Schering-Plough’s Zetia and Merck’s Zocor, worked no better than Zocor alone for reducing cholesterol. The two federal lawsuits filed in Missouri claim the study showed Vytorin can actually increase cholesterol.
The lawsuits also claim the companies purposefully hid the study from the public since April 2006 so sales of the drug wouldn’t be affected.
“The case is a straight, consumer-base claim,” said Benjamin Bertram, of Bertram & Graf, who filed a lawsuit in Jackson County Circuit Court last week regarding the Vytorin controversy. “By not releasing data from the study … patients were buying Vytorin when they could have had the same results from Zocor for a third of the costs.”
With the flurry of lawsuits seeking class action status, multidistrict litigation is the most probable solution, said Matthew Clement, a partner with Cook, Vetter, Doerhoff & Landwehr, based in Jefferson City.
“Probably what will happen in this case is … there will be a hearing in front of a panel of federal judges to decide if it’s appropriate for multidistrict litigation,” said Clement, the lead plaintiffs’ attorney in the lawsuit filed Monday in federal court in Kansas City. “Then they will select a court and that court will handle the case so they don’t have 25 different cases going at the same time.”
State circuit court cases could then be transferred to federal court to join the class action. This process could unfold in the next three months, Clements added, but final disposition could take years.
Bertram expects the lawsuits to be consolidated into multidistrict litigation as well. He said in similar cases, a steering committee of attorneys has been formed to guide the litigation. Plaintiff attorneys can apply to be on the committee or work in subcommittees to deal with such areas as discovery.
In a class action suits, Bertram said, that’s usually the only avenue for attorneys to get paid.
“At the end of the day and when there’s resolution, that’s how you can recoup for the amount of time you spend on the case,” Bertram said, adding that it’s too early in the process to determine if he would apply to be on a hypothetical committee.
Merck and Schering-Plough officials have publicly denied any wrongdoing and have backed Vytorin’s ability to cut cholesterol. Attorneys general in New York and Connecticut have launched investigations into the allegations that the companies concealed the study’s findings.
The federal lawsuits filed in Missouri claim that Merck and Schering-Plough received approximately $5 billion in sales from the drug since April 2006, when the companies allegedly knew the study’s findings. Since more affordable cholesterol drugs were available, the lawsuits seek monetary amounts for the difference in the price of the generic Zocor in addition to punitive damages. Vytorin costs about $3 per pill, while generic Zocor costs less than $1 per pill.
Clement said the request for in excess of $5 million in damages is an estimate in how much Missouri residents lost by paying for the more expensive Vytorin.
“In our case, there have been all kinds of things in the media about how much they made since they knew about the study and when it was released,” he said. “We didn’t think it was productive to make an outrageous demand (for punitive damages) until discovery.”
Calls to Kimberly Lowe, of Lowe & Lowe in Waynesville, who filed the suit in Missouri’s Eastern District, were not returned by press time Tuesday.
Copyright 2008 Dolan Media Newswires
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