Merck to appeal $4.6M verdict in Mass. case over alleged overcharging for popular asthma drug

By Linda A. Johnson, AP
Thursday, September 30, 2010

Merck to appeal $4.6M verdict in Mass. fraud case

TRENTON, N.J. — Drugmaker Merck & Co. plans to appeal a federal court verdict that a former subsidiary caused the commonwealth of Massachusetts to overpay pharmacists for a widely used asthma medication, the company said Thursday.

After a three-week trial, a jury in Boston found Merck liable for about $4.6 million in compensatory damages. The judge hearing the case, U.S. District Judge Patti Saris, is to decide later on potential penalties, which Merck said could be substantial.

The three generic albuterol products involved in the case, which began in 2003, were manufactured and sold by Warrick Pharmaceuticals, a subsidiary of Schering-Plough Corp. Merck, based in Whitehouse Station, bought Schering-Plough in November 2009. Warrick closed the year before.

“The company intends to vigorously pursue a reversal of the verdict in the trial court and on appeal, if necessary,” Bruce N. Kuhlik, Merck’s general counsel, said in a statement.

Kuhlik said evidence presented at the trial showed Warrick was not responsible for the state’s choices about how much it paid Massachusetts pharmacists for the drug. Merck said evidence showed Massachusetts never required Warrick to provide information on the price at which it was selling albuterol and that the prices Warrick reported to other government entities were accurate.

Drug companies are generally required to give government health programs such as Medicaid the same prices or discounts on medication that they give to other large customers.

Albuterol is a medicine that opens up airways for patients with asthma, bronchitis and chronic obstructive pulmonary disease. Usually, albuterol is supplied through inhalers or nebulizers, devices that blow medicine particles down the throat and into the lungs.

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