Merck investors to appeal of Vioxx lawsuit ruling

Last Updated: 2007-04-16 13:00:08 -0400 (Reuters Health)

NEW YORK (Reuters) - Merck & Co. Inc. investors who sued over the company's disclosures about its withdrawn painkiller, Vioxx, plan to appeal a U.S. judge's ruling dismissing the case, an attorney for the shareholders said on Friday.

The securities class-action lawsuit was thrown out on Thursday by U.S. District Judge Stanley Chesler in New Jersey, who said the case was brought too late under the statute of limitations.

"We can and will be appealing the decision of the district court," said Sean Coffey, one of the lead attorneys for the shareholders.

Coffey, a partner at law firm Bernstein Litowitz Berger & Grossmann LLP in New York, said the plaintiffs plan to file an appeal with the U.S. Court of Appeals for the Third Circuit asking for the case to be reinstated.

"We will ask the Third Circuit to give us the opportunity to have our day in court," he said.

The lawsuit contended that Merck misrepresented the safety profile of Vioxx, which was taken off the market in September 2004 after being linked to heart risk, and that shareholders were harmed by the company's conduct.

In his ruling, Judge Chesler said the earliest securities fraud complaint against Merck related to the Vioxx withdrawal was filed on Nov. 6, 2003, while the drug maker had warned of the potential safety issues by early October 2001.

Given that the U.S. Food and Drug Administration had published a warning letter on Vioxx in September 2001, "the court finds that it is clear that storm warnings of fraud existed more than two years before this complaint was filed," the judge wrote.