Peterson v Merck Sharpe & Dohme (Aust) Pty Ltd [2010] FCA 180

FEDERAL COURT OF AUSTRALIA

Peterson v Merck Sharpe & Dohme (Aust) Pty Ltd [2010] FCA 180 Citation: Peterson v Merck Sharpe & Dohme (Aust) Pty Ltd [2010] FCA 180

Parties: GRAEME ROBERT PETERSON v MERCK SHARPE & DOHME (AUSTRALIA) PTY LTD (ACN 000 173 508) and MERCK & CO, INC.

File number: VID 451 of 2006

Judge: JESSUP J

Date of judgment: 5 March 2010

Corrigenda: 18 June 2010

Catchwords: TORTS – Negligence – Product Liability – Prescription medicine for relief of inflammation – Side-effects – Whether medicine caused or contributed to cardiovascular disease – Whether manufacturers knew or ought to have known of that tendency – Whether they owed duty of care to consumers – Content of duty of care – Whether affected by status of product as prescription medicine – State of scientific uncertainty as to side-effects of medicine – Whether manufacturers undertook sufficient research into side‑effects – Whether medicine should have been withdrawn from market pending resolution of scientific issues – Whether manufacturers breached duty of care by not doing so. TORTS – Negligence – Product Liability – Prescription medicine for relief of inflammation – Side-effects – Clinical trial presenting signal of cardiovascular risk – Whether discharge of duty of care required medicine to be withdrawn from market – Whether doctors, pharmacists, health care professionals and the public should have been warned – Whether they were warned – Terms of warning that would have been sufficient – Whether sufficiently communicated to doctors – Whether amendment to "Product Information" was sufficient – Manufacturer's sales representatives claiming medicine safe – Whether justified claim – Whether duty of care breached by failing to warn and/or making safety claim. TORTS – Negligence – Product Liability – Causation – Prescription medicine for relief of inflammation contributing to applicant's heart attack – Manufacturer negligently failed to warn of risk and represented safety of medicine – Whether applicant would have declined to take medicine if appropriately warned or if no safety claim made – Whether applicant's doctor would have chosen not to prescribe medicine. TRADE PRACTICES – Misleading or deceptive conduct – Prescription medicine for relief of inflammation associated with doubling of risk of heart attack – No warning provided to doctors – "Product Information" for medicine not referring to increased risk – Whether misleading or deceptive conduct on part of corporation marketing the medicine – Sales representatives of corporation claiming medicine safe – Whether misleading or deceptive – Medicine contributed to applicant's heart attack – Whether applicant's doctor relied on conduct of corporation – Whether he would have prescribed medicine in any event. TRADE PRACTICES – Defective goods – Prescription medicine for relief of inflammation associated with doubling of risk of heart attack – No warning provided to doctors – Whether safety of medicine not as such persons generally entitled to expect – Whether defect arose only because of compliance with mandatory standard – Whether state of scientific knowledge not such as to enable defect to be discovered. TRADE PRACTICES – Unsuitable goods – Prescription medicine for relief of inflammation associated with doubling of risk of heart attack – No warning provided to doctors – Whether applicant made purpose of acquiring medicine known to manufacturer – Whether medicine not reasonably fit for that purpose – Whether applicant relied on manufacturer's skill or judgment. TRADE PRACTICES – Goods of unmerchantable quality – Prescription medicine for relief of inflammation associated with doubling of risk of heart attack – No warning provided to doctors – Whether medicine not as fit for the purpose for which goods of that kind commonly bought as was reasonable to expect.