Merck’s illegal MMR smokescreen continues ~ By Hilary Butler

Question: When is a legal case really newsworthy?

    Answer: When it’s never covered by the mainstream media. Yet the ongoing Merck MMR case – which no-one is being told about – is even more important than VIOXX was.

smokeimagesI wonder how Merck has managed to so skillfully keep it out of mainstream media….

So let’s update the news, …. that isn’t being told.

An ARTICLE planted recently in the pro-corporate website Law360 says pretty much what Merck’s lawyers wanted it to say. Naturally, it was ignored by mainstream media. It said:

‘Eric Sitarchuk of Morgan Lewis & Bockius LLP emphasized that the suit brought by two former employees of the company does not hold up because they failed to demonstrate that the label of its mumps vaccine was false and that the FDA was misled about the efficacy of the vaccine….. “They’re asking the court to muscle the FDA out of the way and decide on the science,” Sitarchuk said. “It’s precisely that problem that’s why an Fair Claims Act case can’t be based on the alleged falsity of the label.”….. Sitarchuk argued that for the pair to succeed in their case they would have to allege that the government was the victim of active misrepresentations by Merck and show that the efficacy of the vaccine was less than what the company claimed.’

In two previous blogs about this case, I outlined the primary issues, and uploaded the original complaint:

PART ONE: June 23, 2012. Former Merck Scientists File Suit Against Merck Under The False Claims Act

PART TWO: June 24, 2012. Merck’s Money Racket

What’s happened since then?

SRKW LAW is the co-lead counsel for the class action lawsuit which runs parallel to the core case.

It took a while to find all subsequent relevant documents, which I will not upload here, for obvious reasons – but here are my summaries from the three documents which provide the Judge with core arguments from relevant parties:

On 31st August 2012, Merck filled a 50 page “Motion to dismiss.” (Case 2:10-cv-04374-CDJ Document 45) which simply attempted to rewrite the original complaint with willful inaccuracies, disregarding all allegations, while inventing new circuitous ones. Here are key omissions, and highlights:

1) Merck does NOT deny that they crossed out the numbers and wrote in new ones.

2) Merck does NOT deny that they committed the alleged multiple acts of fraud, but instead try to pretend that the allegations merely involved a misbranded label.

3) Merck attempts to argue that the case is only alleged to be a fraudulent label. Were the issue a fraudulent label, that would remove the case from the False Claims Act to another act laying blame on the FDA, not Merck.

4) Merck then takes another tack, bizarrely arguing for an illegal application of the False Claims Act, limiting or barring cases for fraudulent conduct which violates FDA or federal laws and regulations, and legally requiring whistle-blowers to FIRST exhaust all administrative remedies stating in exhaustive detail, who, what, where, when and how – ignoring the fact that in cases of corporate fraud it’s impossible for plaintiffs to have full personal knowledge of malfeasance occurring further up the hierarchy, where sophisticated means of concealment are used. This judicial demand, would rip the heart out of the statute’s application, and make the False Claims Act pointless.

5) Merck then argues that the case should be dismissed because the False Claims Act doesn’t allow private citizens to challenge the FDA’s determination.

6) Merck indulges in pure make-believe by asserting that allowing the case would unduly interfere, usurp and intrude on the FDA’s expertise, judgment and discretion to enforce its own rules and regulations.

7) Merck tries to claim that the relators are first required to file a citizen’s petition with the Fda and exhaust all administrative remedies that might have been available even though there is no requirement for any such legal pre-requisite.

8) Merck asserts that the case should be dismissed because the relators waited nine years to lodge a case, and in that time, never utilized any processes with the USA FDA. So Merck is insinuating that because the two scientists should have complained harder, and they didn’t, there can’t possibly be a case.

9) Merck also infers that because the FDA let Merck get away with it, they couldn’t have done anything wrong.

10) Merck says is that the case has no merit because the DOJ decision not to intervene proves Merck’s innocence. (I said at the end of THIS BLOG in June 2012, that Merck couldn’t be silly enough to claim this but obviously Merck’s lawyers are sillier than I thought.)

Continue reading this blog and the series on Merck HERE.