Merck Hit With Antitrust Class Action Over Vaccine Data

A putative antitrust class action lawsuit has been filed in Pennsylvania federal court against Merck and Co. Inc. by an Alabama medical provider who has accused the company of lying about the efficacy rate of its mumps vaccination in an effort to prevent competition from marketing their own versions.

Merck is being accused by Chatom Primary Care PC of falsifying studies and obscuring test results in order to artificially maintain the claim of a 95 percent rate of efficacy, thereby intimidating rivals from creating their own vaccines. Merck has been the only drug company in the United States licensed to produce a mumps vaccine since 1967. The inoculation is also intended to immunize against rubella, chickenpox, and measles.

According to the complaint, Merck has maintained a monopoly on this vaccine not through innovation or legitimate business acumen, but through the willful and illegal manipulation of data.

The complaint against Merck arises in the wake of a False Claims act case filed by two past Merck employees, who similarly claimed that the company used improper testing techniques and falsified data to artificially inflate the mumps vaccine’s efficacy rate. The two employees said that the government, purchaser of more than 50 percent of Merck-produced mumps vaccines, has spent hundreds of millions of dollars on ineffective medicine.

A Merck spokesman calls the lawsuit “completely without merit,” saying that the company will defend itself vigorously against charges.

The lawsuit claims that as the mumps vaccine has been repeatedly synthesized from the same strain of mumps virus since its first manufacture in 1967, it has lost potency over time, consequently failing to prevent sizable mumps outbreaks in the United States in 2006 (6,500 cases reported in the Midwest) and 2009 (another 5,000 cases reported around the country. The complaint further alleges that Merck knew of this issue for more than a decade, and that the company responded by concealing test results and formulating new ones with “scientifically flawed methodology” in order to achieve the outcome it wanted.

Chatom Primary Care PC is seeking to represent anyone who purchased Merck mumps vaccines between January 1, 1999 and the present day. The lawsuit seeks compensation for antitrust violations, unjust enrichment, and breaking state consumer protection and warrants laws.

Chatom Primary Care PC is represented by Richard Golomb and Steven Resnick of Golomb Legal, P.C., Hollis Salzman, Bernard Persky, Christopher McDonald, Kellie Lerner and Elizabeth Friedman of Labaton Sucharow LLP (/firms/labaton-sucharow), Stephen Dampier of Dampier Law Firm PC, and R. Edward Massey Jr. of Clay Massey & Associates PC.

The case is Chatom Primary Care PC v. Merck & Co (/companies/merck-co-inc). Inc., case number 2:12-cv-03555, in U.S. District Court for the Eastern District of Pennsylvania.