Tuesday, May 16th, 2017
Two lead cases against the pharmaceutical company Pfizer have been appointed to proof before answer by Lord Beckett following a procedure roll debate. The two actions are amongst 60 actions in which Pfizer are being sued for heart attacks and strokes allegedly caused by their NSAID painkiller, Celebrex. Pfizer have previously settled similar claims around the world and Scotland is believed to be the only jurisdiction in which claims in relation to Celebrex are still pending.
The pursuers aver that Celebrex is a defective product in terms of the Consumer Protection Act 1987. It was one of a class of Non-Steriodal Anti Inflammatory Drugs that were designed to provide gastro-intestinal benefits over other painkillers. In around 2000, risks associated with these “COX-2 inhibitors” led to withdrawal of the pharmaceutical giant Merck’s drug Vioxx from the market. Celebrex remains available to prescribers.
Lord Beckett noted: “… the pursuers aver bases on which the defenders would have known of potential adverse CV events associated with the use of COX-2 inhibitors from 1997 onwards, and more clearly from 1999 onwards. Specified studies undertaken by the defenders in connection with arthritis are said to have shown that there was an increased risk of CV events for patients taking doses of 100mg or more as compared with a placebo.” The pursuers also aver the defenders were aware of the significant risks to patients and misrepresented the results of their studies to regulators and the public. In particular, the pursuers aver: “From 1999 to 2004, the defenders maintained to the public (and GPS) that Celebrex (and indeed Bextra) were wholly safe painkillers without side effects. That claim was false as the defenders well knew.”
The defenders contended: firstly, that the pursuers had not pled a relevant case, having regard to the detailed averments in answer; and secondly, that the pursuers’ averments of fraud and deceit by Pfizer had not met the high standard of specification required of such pleadings.
On the plea to relevancy, Lord Beckett held: “ Neither on the statutory case nor that of common law fault do I consider that even if the pursuers succeed in proving all that they aver still their case must fail. As I was invited to do by Mr Smith for the pursuers, I will allow parties proof before answer on their respective averments.”
On the pursuers’ averments of fraud and deceit by Pfizer, Lord Beckett relied on dicta of Lord Macfadyen in the case of Royal Bank of Scotland v. Holmes 1999 SLT 563, holding: “The pursuers are not seeking to prove their claim on the ground of fraud and whilst that is not the end of the matter, it is important to keep in view that in many of the cases founded upon, it was sought to prove fraud either as a ground of action for the pursuer or as a defence. In Royal Bank of Scotland, a sufficiently averred fraud on the part of a third party could have founded a defence in the particular circumstances of that case. It is against that background that the various dicta should be understood.” Following a detailed analysis of the pleadings, Lord Beckett held there was no lack of fair notice to Pfizer.
Lord Beckett excluded a sentence from the 73-page record and appointed the cause to proof before answer.
The pursuers were represented by Andrew Smith QC and Craig Murray, Advocate; the defenders were represented by Rory Anderson QC and Graeme Middleton, Advocate, all of Compass Chambers. A copy of the Opinion can be found here.
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