Rotavirus Vaccine Class Action Lawsuit Filed Against Merck Over Anticompetitive Scheme

Merck & Co. faces a class action lawsuit over its rotavirus vaccine, which claims the pharmaceutical company has engaged in an illegal and anticompetitive scheme to maintain its monopoly power over the pediatric vaccine market in the United States, causing purchasers of the rotavirus vaccines to pay unfair prices.

The complaint (PDF) was filed on March 3 by the Mayor and City Council on Baltimore in the U.S. District Court for the Eastern District of Pennsylvania, seeking class action status to pursue damages on behalf of all similarly situated purchasers of the rotavirus vaccine.

According to the lawsuit, Merck, which makes RotaTeq, has engaged in an anticompetitive vaccine bundling scheme that leverages the drug maker’s monopoly power in multiple vaccines administered to children, resulting in “supracompetative” prices for the rotavirus vaccine, which does have a viable competing alternative sold by GlaxoSmithKline, under the trade name Rotarix.

The City of Baltimore claims that Merck has used this tactic on a variety of vaccines for children, allowing the company to charge whatever it wants. This includes the rotavirus vaccine, as well as the measles, mumps, and rubella vaccine (MMR), and the Gardasil human papilloma virus (HPV) vaccine.

The rotavirus vaccine is used to prevent against infections of the same name, which can cause severe diarrhea among young children. Estimates indicate the vaccine successfully protects about 90% of its recipients.

Merck Punished “Disloyal” Rotavirus Vaccine Buyers, Lawsuit Claims

According to the lawsuit, Merck was the only seller of the vaccine from about 2006 to 2008, when GlaxoSmithKline introduced Rotarix. However, then Merck launched a scheme to financially punish those who bought Rotarix, the lawsuit claims.

“In preparation for GSK’s introduction of a competing rotavirus vaccine, Merck added a condition to its contracts that required customers to buy all or nearly all of their pediatric rotavirus vaccines from Merck or face substantial price penalties on not only RotaTeq but also on all other bundled Merck vaccines,” the lawsuit explains. “This new bundle meant that any Merck customer who also wanted to buy significant amounts of Rotarix from GSK would be faced with paying substantial penalties on any RotaTeq the customer continued to buy from Merck, plus substantial price penalties on all other Merck vaccines in the Merck Bundle (including those for which there is no other supplier).”

This has allowed Merck to not only control the market, but it has also allowed GlaxoSmithKline to charge high prices to those who Merck considered “disloyal” customers, as long as they were substantially cheaper than the heavy fines Merck would levy against them for buying the rotavirus vaccine from somewhere else, the lawsuit claims.

The lawsuit accuses Merck of violation of antitrust laws and violation of state consumer protection laws.

Merck Gardasil HPV Vaccine Lawsuits

One of the other products mentioned in the Merck vaccine lawsuit brought by the City of Baltimore is Gardasil, which has also resulted in a number of lawsuits against the drug maker for failing to warn about severe side effects that may result among children and young adults after receiving the HPV vaccine.

Merck introduced Gardasil in 2006, and sells the only available products for vaccination against the HPV infections, which can be sexually transmitted and lead to the later development of cervical cancer. A prior product was sold by GlaxoSmithKline, under the brand name Cervarix, which was voluntarily taken off of the market in the 2016.

Amid aggressive marketing of Gardasil by Merck, the vaccine has been commonly administered to both girls and boys before adolescence and potential sexual activity, and it is often bundled with a group of pediatric vaccines.

Although it has been promoted as safe, teens and young adults have reported experiencing a variety of problems caused by HPV vaccine Gardasil, including postural orthostatic tachycardia syndrome (POTS), premature ovarian failure, premature menopause, seizures and other autoimmune disorders, which emerged shortly after receiving the injection.

In recent months, Merck has faced a growing number of Gardasil lawsuits brought in the federal court system, each involving similar allegations that the drug maker placed it’s desire for profits before the health and safety of consumers, by failing to disclose known risk information to parents or the medical community.