Merck & Co's Australian unit has suffered a setback after a court decided that the withdrawn painkiller Vioxx doubled the risk of heart attack and was “unfit for its purpose and not of merchantable quality”.

Judge Christopher Jessup has awarded A$287,912 (about $259,400), plus interest, to Graeme Peterson, 59, who is leading a class action lawsuit and suffered heart attacks after using Vioxx (rofecoxib). He also determined that Merck had breached its duty of care to Vioxx consumers “and engaged in misleading and deceptive conduct by its failure to warn the applicant’s doctor of the potential cardiovascular risk” linked to the drug which was voluntarily withdrawn in September 2004.

Mr Peterson's lawyers, Slater & Gordon, noted that the judgement follows five years of litigation, a trial of 48 days, 25 witnesses and “examination of more than a million pages in hundreds of thousands of documents”. The solicitors’ deputy chairman, Peter Gordon claimed that Merck should now end the court battle, saying “it is now time for Merck to treat Australians in the same manner they have treated Americans and come to the table to settle outstanding claims”. In 2007, the New Jersey-based major agreed to pay $4.85 billion to settle some 50,000 personal-injury suits in the USA.

Merck and its local subsidiary MSD Australia noted that the court dismissed all claims against the parent company and ruled that it was not “negligent in its development, scientific study and sale of Vioxx”. The company added that it disagrees with “the limited portions of the court’s findings that were against MSD Australia and intends to appeal them”.

Merck added that the litigation in Australia “remains at an early stage”, saying it continues to believe that the evidence shows the companies acted responsibly with Vioxx, from “careful study in clinical trials involving about 10,000 patients…through the careful safety monitoring while Vioxx was on the market”.

Nevertheless, the winners were in celebratory mood. Mr Gordon said his firm has also received a number of requests for assistance from the UK. "We have responded to all such inquiries by repeatedly making it clear we think the case against Vioxx is strong and that litigants ought to be prepared to aggressively pursue the claims,” he concluded.