Merck & Co., Inc. said it will vigorously appeal a Massachusetts federal court jury verdict concerning allegations that a former subsidiary of Schering-Plough Corporation, Warrick Pharmaceuticals, caused the Commonwealth of Massachusetts to overpay local pharmacists for prescriptions of albuterol. Merck and Schering-Plough merged in November 2009. Warrick ceased operations prior to the merger, in 2008.

Following a 3-week trial, the jury found Merck liable for approximately $4.6 million in compensatory damages. U.S. District Judge Patti Saris deferred a decision on how penalties should be calculated under Massachusetts state law. While penalties could be substantial, Merck emphasized that significant legal issues remain to be decided by the court before penalties could be imposed in any amount.

"The company intends to vigorously pursue a reversal of the verdict in the trial court and on appeal, if necessary," said Bruce N. Kuhlik, executive vice president and general counsel of Merck. "We strongly believe the evidence showed that the Commonwealth made informed choices about amounts it paid to Massachusetts pharmacists, and that Warrick was in no way responsible for those choices."

At trial, Merck presented evidence that Warrick was never required or asked to provide information to the Commonwealth regarding the price at which it was selling albuterol, that the prices Warrick reported to other parties, including other government entities, were true and accurate, and that the Commonwealth had extensive and accurate information regarding those prices from sources other than Warrick.

"We are very disappointed with the outcome of this trial. Both the finding of liability and the amount of compensatory damages are clearly against the weight of the evidence," said John T. Montgomery of Ropes & Gray LLC, outside counsel for Merck. "We will promptly seek to set aside the verdict."

The case was originally filed by the Commonwealth in 2003 and was tried in federal court in Boston. The drugs involved in the case are three generic albuterol products that were manufactured and sold by Warrick.

Source:
Merck