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Plaintiffs’ firms around the nation are pouncing on Merck & Co. Inc. and Schering-Plough Corp. in the wake of revelations that a study by the two pharmaceutical giants found that their jointly produced anti-cholesterol medication, Vytorin, allegedly is no more effective than generic drugs costing less. All of the Vytorin suits allege consumer fraud, claiming that the two firms delayed release of the study while they continued to say that the drug helped reduce the risk of heart attack. None claims personal injury. “I hadn’t even finished reading the article when people were calling me, irate,” said Steve Berman at Hagens Berman Sobol Shapiro in Seattle. “They were paying out of pocket because they were told [Vytorin] would lower their plaque. They wouldn’t have paid for it if the drug was truthfully marketed.” Berman’s suit, filed on Jan. 17 in the U.S. District Court for the District of New Jersey, seeks the return of money to purchasers of Vytorin. Lionel Galperin v. Merck & Co. Inc., No. 08-cv-349. Saltz Mongeluzzi Barrett & Bendesky of Philadelphia is local counsel. ‘Almost a reflex’ “It is almost reflexive,” said David B. Rheingold of Rheingold, Valet, Rheingold, Shkolnik & McCartney, adding that he filed suit in his wife’s name � she is a Vytorin user � after seeing newspaper articles about the study. The suit, Rheingold v. Merck, No. 08-CV-00438, was filed on Jan. 17 in the U.S. District Court for the Southern District of New York. The Rheingold firm partnered with Neblett, Beard & Arsenault of Alexandria, La., and The Drakulich Firm of San Diego. Vytorin is a combination of simvastatin, an early statin medication made by Merck that was marketed as Zocor until it lost patent protection in 2006, and ezetimibe, made by Schering-Plough and marketed as Zetia. Zetia is a newer type of cholesterol-lowering drug that blocks absorption of cholesterol in the intestines, unlike statins that regulate cholesterol production in the liver. Vytorin is approved by the Food and Drug Administration for reducing low-density lipoproteins (LDL), commonly known as “bad cholesterol.” Plaintiffs allege that Merck and Schering-Plough marketed Vytorin in part with the claim that it reduced accumulation of fatty arterial plaques that can cause heart attack and stroke. The so-called ENHANCE study, concluded in April 2006, found Vytorin was no more effective than Zocor at reducing plaque buildup, though it did a better job of reducing LDL. The results were announced on Jan. 15. “When it came to lowering LDL in the ENHANCE trial, which is what Vytorin is indicated for, Vytorin did significantly better than simvastatin,” said Skip Irvine, a spokesman for Merck. Vytorin suits followed news reports of the ENHANCE study almost immediately. David Krangle of Parker Waichman Alonso in Great Neck, N.Y., said he received calls from Vytorin users the day he read news of the ENHANCE study findings and quickly assembled a team of firms to bring suit in the U.S. District Court for the Eastern District of New York. Tomaszewski v Merck, No. CV 08-258. “We were contacted by people who purchased the drug in New York,” he said. Cases are being filed faster than any of the lawyers can track, including a Florida case filed on Jan. 18 in the state’s Middle District, with a 72-year-old grandmother as the named plaintiff. Greene v. Merck & Co., No. 3:08-cv-00069-TJC-MCR. Krangle’s firm has partnered with New York’s Douglas & London; Becnel Law Firm of Reserve, La.; Levin Simes Kaiser & Gornick of San Francisco; Houston’s Bailey Perrin Bailey; and Weitz & Luxenberg of New York. “We like to team up to get everyone’s resources to handle the case more effectively,” Krangle said. “We moved quickly because there are certain advantages to getting started early. When the class counsel is appointed, one of the things a judge will look at it is who filed the case first, so that’s why cases are filed quickly.” Despite the fast start, no one expects a quick result. “Schering-Plough will vigorously defend against these claims,” said Rosemarie Yancosek, executive director for corporate communications. “Vytorin and Zetia have been shown to reduce LDL cholesterol based on numerous clinical studies and have been approved by the FDA for that indication.”

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