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Lawsuit Filed in Florida Federal Court Over Marketing of Vytorin and Zetia By Merck and Schering-Plough
Date:1/24/2008

Lawsuit alleges violations of consumer statutes, breach of warranty and unjust enrichment; Damages would involve return of proceeds from sales in excess of $5 billion last year, mostly paid through Medicare, Medicaid,

other federal drug programs and private insurance

JACKSONVILLE, Fla., Jan. 24 /PRNewswire/ -- Howard and Associates, P.A. and Wilner Block, P.A. announced that they have filed a lawsuit against Merck & Company Inc. (NYSE: MRK) and Schering-Plough Corporation (NYSE: SGP), manufacturers of Vytorin and Zetia.

The lawsuit was filed on January 18, 2008, in United States District Court, Middle District of Florida, Jacksonville Division, alleging violations of state consumer protection statutes, breach of warranty, and unjust enrichment. The lawsuit seeks punitive damages from Merck and Schering-Plough for their marketing and sale of Vytorin and Zetia.

The lead plaintiff in the lawsuit, which seeks class action status, is Marion J. Greene, a 72-year old grandmother of three who purchased Zetia and was reimbursed through federal Medicare and Veterans Administration drug programs.

"I was shocked to see that I was using a drug costing three times what a generic would, with no additional benefits," said Mrs. Greene. "I feel I've been intentionally misled by companies whose main pursuit is profits, rather than health."

Published reports indicate combined revenues of more than $5 billion from sales of Vytorin and Zetia. Most drug costs are paid for through public health programs such as Medicare and Medicaid, or through private insurance. Under state and federal consumer protection laws, both Merck and Schering-Plough would have to refund overpayments, since generic statin drugs can be obtained for approximately 1/3 of the cost of the brand name drugs. Both companies would also face punitive damages.

Schering-Plough Corporation manufactures, markets, and/or sells the prescription drug Zetia. Zetia is a cholesterol-lowering drug, which acts by diminishing the absorption of cholesterol through the intestines.

Merck Corporation, Inc. manufactures, markets and/or sells the prescription drug Vytorin which is Merck's brand-name composite drug consisting of a proprietary combination of Zetia and Zocor. The drug Zocor is a statin, which reduces low-density lipoprotein (LDL) cholesterol and total cholesterol in the blood.

According to the complaint, on January 14, 2008, "possibly prompted by Congressional inquiry," Merck and Schering-Plough released a study from April, 2006, that found Vytorin provided no significant benefit in slowing the clogging of arteries versus generic statin drugs -- in fact, some patients showed an increase in triglycerides when compared to those using generic statin drugs alone. Publication of the study was withheld for almost two years. In the meantime, Vytorin had been marketed as "the only drug that helps: Block the absorption of cholesterol that comes from food," and "Reduces the cholesterol your body makes naturally," with the result of "less bad cholesterol . . . in your bloodstream."

Indeed, just yesterday Merck and Schering-Plough placed advertisements in major newspapers stating they "proudly stand behind the established efficacy and safety profile of Zetia and Vytorin."

Boston Professor Tim Howard J.D, Ph.D, Director of the Doctorate Program in Law & Policy at Northeastern University, founding partner of Howard & Associates, P.A., a leading law firm based in Tallahassee, Florida, and co- counsel in the case, said: "It's not just patients who are being ripped off by fraudulent marketing claims. It's health systems, insurance companies, Medicare and Medicaid, and -- ultimately -- the U.S. taxpayer."

Dr. Howard is joined on the case by Richard A. Daynard, Professor of Law at Northeastern University, along with Wilner Block, P.A., a leading law firm based in Jacksonville, Florida.

Pr. Daynard said: "This is just another example of why healthcare costs have skyrocketed in the United States. If you want to talk about reforming our nation's healthcare system, this would be a good place to start."

Norwood "Woody" Wilner, founding partner at Wilner Block said: "Merck and Schering-Plough's response has been to assure the public that Zetia and Vytorin are safe and effective. But that's not the point. Millions of patients have been sold a drug that these companies' own studies show doesn't do what it was marketed and advertised to do. And both companies have known about their study results for almost two years."

"That," Mr. Wilner added, "is the definition of 'consumer fraud'."


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SOURCE Howard and Associates, P.A.; Wilner Block, P.A.
Copyright©2008 PR Newswire.
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