A £3.5m action against the world’s biggest pharmaceutical company Pfizer can proceed in Scotland, appeal court judges have ruled in Edinburgh.
Around 70 Scottish people have made claims against Pfizer which is the successor company in legal terms to the developers of the non-steroidal anti-inflammatory drug (NSAID) celecoxib which was prescribed for arthritic conditions.
Two men in their seventies, retired engineer Ronald Richards from Stirling, and ex-miner John Jarvie, from Denny, suffered a heart attack and two strokes respectively which they say happened after they took Celebrex, which is the brand name of celecoxib.
Pfizer appealed against the decision last year by Lord Beckett that the two test cases could proceed. Three Appeal Court judges in the Court of Session have now backed the original decision and the men can sue.
Delivering the judgement on behalf of the three judges, Lord Brodie wrote that Richards and Jarvie aver that Celebrex “was a defective product giving rise to liability for damage caused, in terms of section 2 of the Consumer Protection Act 1987”.
He added: “Celebrex 100mg and 200mg capsules received marketing authorisation in the United Kingdom in May 2000. Richards took Celebrex as prescribed between July 2002 and May 2004. Jarvie took Celebrex as prescribed between May 2002 and December 2004.”
Pfizer has repeatedly claimed that the drug is safe and is approved in more than 100 countries. This week the USA’s Food and Drug Administration have said it is as safe as ibuprofen.
The current case turns on the possible cardiovascular side effects. When the case first went to court last year Ronald Richards said he would never have taken Celebrex if he had known about the side effects.
Lord Brodie wrote: “The pursuers’ (Richards and Jarvie) case is of failure on the part of the defenders to provide adequate information as to a material risk of the association of adverse cardiovascular events with long-term consumption of Celebrex.
“It is presented on two bases: (1) negligence; and (2) liability for damage by virtue of section 2 (1) of the Consumer Protection Act 1987.
“It is averred that from 1999 onwards the
defenders (Pfizer) had evidence that Celebrex was implicated in a significant and materially increased risk of serious cardiac side effects but that the dangers were not disclosed until January 2005.”
The court had already heard previously that in 2005 a Pfizer company had altered a patient information leaflet in relation to products marketed in the US. It then stated: “Celebrex may cause an increased risk of serious cardiovascular thrombotic events, myocardial infarction and stroke which can be fatal.”
According to Lord Brodie, lawyers for Pfizer argued that he essence of the company’s argument before Lord Beckett was that the pursuers had not pled a relevant case of negligence based on a supposed duty to warn. The lawyers claimed the judge had not properly analysed that argument.
Lord Brodie recorded that Andrew Smith QC for Richards and Jarvie had argued it was the public, and particularly prescribing doctors and their patients, who should be warned about increased risk, and the content of the warning should have reflected the results of the studies which were available to the defenders.
The judge stated: “Smith confirmed that, as they had pled, the pursuers intended to prove that their respective GPs would not have prescribed Celebrex had a warning of the material risk of adverse CV events been given, indeed if that warning had been given from the outset they say that few if any doctors in the United Kingdom would have prescribed it.
“In the result patients were prevented from giving informed consent. The pursuers further intended to prove that had they not taken Celebrex they would not suffered adverse CV events.”
Lord Brodie concluded: “The pursuers’ case is that their general practitioners would not have prescribed Celebrex for them. That seems to us clear from the pursuers’ averments; that is what they offer to prove.”
He dismissed Pfizer’s appeal, and the two test cases will now go to a full hearing.
Each is suing Pfizer for £50,000 as are 68 other people.
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