Vioxx appeal in Full Federal Court successful

On 12 October 2011 the Full Court of the Federal Court of Australia, constituted by Chief Justice Keane and Justices Bennett and Gordon JJ (their Honours) allowed an appeal of the Federal Court decision to award compensation to a claimant who claimed consumption of Vioxx caused him to have a heart attack in 2003.

The drug

Vioxx, a "Cox-2" inhibitor, was approved for sale in 1999. Vioxx was an anti-inflammatory drug that was prescribed to patients suffering from the effects of arthritis. At the time the drug was considered revolutionary because, unlike similar medications, the drug did not have any gastrointestinal side-effects.

Merck Sharpe & Dohme Australia (MSDA) withdrew Vioxx on 30 September 2004 after a study showed it doubled the risk of certain cardiovascular adverse events.

The class action

Mr Peterson represented a defined class including all persons who after 30 June 1999 were prescribed Vioxx (in Australia) and who within 30 weeks of consuming Vioxx suffered one or more specific cardiovascular conditions.

Mr Peterson alleged that Vioxx increased the risk of cardiovascular disease and that the distributor MSDA knew or should have known this prior to the drug's voluntary recall in 2004.

The class action was launched against the respondents in 2005 based in negligence and on various alleged breaches of the Trade Practices Act 1974 (Cth) (TPA), now the Competition and Consumer Act 2010 (Cth).

Mr Peterson was awarded $287,000 in 2010 by Justice Christopher Jessup. His Honour found Mr Peterson was entitled to recover damages pursuant to ss 74B and 74D of the TPA, finding (respectively) that:

Vioxx was not reasonably fit for the purpose implicitly made known to MSDA (i.e. the safe relief of arthritic pain); and Vioxx was not of merchantable quality because it was reasonable for a consumer to expect that a medication for the relief of arthritic pain would not involve a doubled risk of heart attack. This finding was made notwithstanding that Justice Jessup also held that MSDA was entitled to the 'state of the art' defence under s 75AK(1)(c) of the TPA.

Mr Peterson also unsuccessfully alleged breaches of ss 52 and 75AD of the TPA, the former failing due to want of causation and the latter failing due to the operation of the 'state of the art' defence.

Did Vioxx cause Mr Peterson's heart attack?

Justice Jessup's ultimately determined that Vioxx had caused Mr Peterson's heart attack.

Counsel for Mr Peterson submitted that his Honour's findings of ultimate fact were sufficient to sustain the judgment. Counsel for MSDA submitted that his Honour's express refusal to find that Mr...