Our firm was the first to sue under consumer protection laws for persons victimized through the use of Vytorin and Zetia, two cholesterol lowering drugs.  This action was filed Jan. 17, 2008, in the federal court in the Southern District of New York.  This is a class action both for residents of New York and other states which have special statutes which allow consumers, who spent money on products due to misrepresentation of the sellers, to collect damages.  

Zetia, whose generic name if ezetimide, was marketed in 2001 on the claim that it would lower  LDH ("bad") cholesterol, and thereby  would reduce heart attacks (myocardial infarcts in medical terms).  The link supposedly was that less fatty plaques would be deposited in the coronary arteries.  The sudden rupture of these plaques caused the heart attack. 

Vytorin is a combination drug first marketed in 2004 which contained Zetia and also Zocor (simvastatin), which is a statin type of drug.  Statins work one way in reducing cholesterol, whereas Zetia worked in another fashion.  Similar claims were made for the ability of Vytorin to reduce the factors that lead to heart attacks.   

These two drugs are marketed by Merck/Schering-Plough Pharmaceuticals, a joint venture of Merck and Schering.  The combined sales have ranged in the billions of dollars annually.

After obtaining approval to market Zetia, the drug companies undertook a detailed study to see if users benefited from it, by having less plaques form in their arteries.  This was the so called ENDEAVOR study, completed in 2006.  However, the results of this study were not released, and the reason only became apparent on Jan. 14, 2008, just three days before our suit was commenced.  The results showed that not only did Zetia not slow down the formation of the dangerous fatty plaques, but it actually accelerated the formation of them in some of the subjects in the test. 

Most disgracefully, the truth about this study was only released by Merck/Schering because of pressure from the United States Congress.

Representative Bart Stupak of the House Energy and Commerce Committee commented that the delay of two years in releasing the data should be regarded as intentional on the part of the companies.  The New York Times in an editorial added that the grudging release of this data raised disturbing questions.

Our law suit alleges that consumers who filled prescriptions for Zetia or Vytorin and paid for them were bilked, because of the misrepresentations made to them and their doctors.  They paid for a drug which was at best useless and perhaps dangerous. They could have been using a statin drug, like Lipitor, or Zocor alone, which is generally less expensive. 

For New York members of the proposed class, damages are sought under the General Business Law.  This law allows the defrauded purchaser to receive back their purchase price, plus extra damages, known as treble damages.  The suit is also for consumers in other states where there are similar laws.  If a court approves the suit as a class action, then every purchaser is covered and need not sue in his or her own name.  A representative sues on behalf of the group.

Not only are individual consumers ones who wasted their money on this drugs, but there are often others who paid for the drugs they used.  This includes insurance companies, union plans, and state and federal agencies (Medicare, Medicaid).  It is expected that these entities will also sue for their loss. 

Indeed, there is much precedent for a successful consumer protection suit.  A large sum was awarded recently in New Jersey relating to the recalled drug Vioxx. 

A special feature of our suit is a cause of action brought under The Medicare Secondary Payer Act (MSPA) which allows Medicare recipients to seek reimbursement and double damages for the fraud committed upon the United States by Merck and Schering Plough. The act is akin to the Qui Tam private attorney general actions which allow private citizens to recover from government contractors moneys paid by the United States under fraudulent contracts, but the allows the claim without the limitation and requirements under Qui Tam to give the United States the option to pursue the case on its own behalf.  Mrs. Rheingold is seeking to recover double damages for the unnecessary payments made by Medicare on her behalf for these drugs.

So far we have not brought any suits for persons physically injured through the use of Zetia or Vytorin.  The current suit is for unjust enrichment and restitution only.  However, there have been reports of liver damage in users of these drugs.  Please contact us if you want to discuss suits involving these drugs.  We will also be happy to send you electronically a copy of the suit in the S.D.N.Y. if you want.

Inquiries can be addressed to:

Hunter J. Shkolnik
RHEINGOLD, VALET, RHEINGOLD, SHKOLNIK & McCARTNEY LLP
113 East 37th Street, New York, NY 10016
tel +1.212.684.1880 | fax +1.212.689.8156
hshkolnik@rhieingoldlaw.com| http://www.rheingoldlaw.com