Chief Justice of the Federal Court of Australia Patrick Keane has been accused of handing down “an appalling judgment” by Slater and Gordon CEO Andrew Grech. The matter was a class action against a drug company that was selling drugs that killed and injured people. The same matter was settled in the US for $US4.85 billion (different people suing for the same reasons and same respondent)
Andrew Grech goes on to say ”Vioxx is a very good example of a reactionary Chief Justice [Patrick Keane] not applying the law in a consistent way” and ”Our problem is that since about , the insurance lobby and others have been very effective in convincing governments – and judges, I might say – that they had to make it harder for people to redress … their grievances. So that has filtered its way through in what I think are some very poor judicial decisions, which have been reactionary in nature.” (Click here to read the full article)
For Andrew Grech to come out and criticise the judiciary like he has is a big call. But the situation is getting beyond repair and it will not be the last time someone in his position does.
I have no doubt that the insurance lobby are convincing judges (directly outside of court) that they should hand down favourable decisions for the insurance companies. There is huge dollars involved. Given the above matter settled in the US for $US4.85 billion. Paying a few dollars, whether it be $100,000 or $1 million, to a corrupt judge or two can save hundreds of millions for the insurance companies. Even billions of dollars.
It says this on the Four Corners website:
“Just a few years ago they were hailed as “super aspirin” … at long last, a powerful and truly effective weapon against the debilitating pain endured by arthritis sufferers.
Now this revolutionary family of wonder drugs – the COX-2 inhibitors – is mired in controversy.
One of the most popular in the class, Vioxx – used by 300,000 people in Australia and tens of millions worldwide – was pulled off the market last October.
No one knows how many people died from strokes or heart attacks caused by Vioxx. But even in Australia, where high doses of Vioxx were never authorised, it’s feared the number of dead and injured might dwarf the toll of Australian life in the Bali bombings.
Elsewhere the toll is likely to be much higher. “It would make 9/11 look like nothing,” says a leading cardiologist in the US, where tens of thousands of litigants are lining up against the maker Merck & Co.” (Click here to read more)
Corrupt judgements are handed down in high-profile cases with plenty of media coverage. For example the NSW Appeals court judgment in the James Hardie matter which was overturned by the High Court. The High Court had no choice because the judgement of Chief Justice Spigelman, Justice Roger Giles and Justice Margaret Beazley was that stupid it was beyond belief. (Click here to read my previous post on James Hardie) And then is also the Optus v ARL – AFL copyright theft which was high-profile and where the Full Court had no choice but to overturn the corrupt judgement of Justice Rares. (Click here to read the previous my post on the case)
So what happens when cases do not have the same high-profile and media coverage? Well it is on for young and old. The judges can get away with blue murder and they do.
The matter above in relation to the drug company giant Merck is very similar to James Hardie and their asbestos compensation. James Hardie made building products with asbestos that killed and injured people and has paid billions of dollars compensation. Merck has done the same in the US and paid billions of dollars compensation. So why not in Australia?
Let’s have a look at the case.
“PHARMACEUTICAL giant Merck is being urged to settle with hundreds of Australian heart attack victims after a Federal Court judge found the company’s blockbuster drug Vioxx doubled the risk of cardiac arrest”
In a landmark decision with international ramifications, judge Christopher Jessup ruled the anti-inflammatory drug was not “reasonably fit” to be on the market and the selling of it by Merck’s Australian subsidiary breached the Trade Practices Act.
It is the first Vioxx trial outside the US, where Merck settled all its cases for $US4.85 billion in 2007, and the first successful class action brought against the makers of the drug. The Melbourne court proceedings have been keenly followed by lawyers from Canada and Britain considering future legal action. (Click here to read the full article)
Obviously Merck had a huge incentive to try to make the case go away because it set a precedent not only here but overseas as well. All up there were 80 million people around the world used Vioxx so that is potentially a company killer even if only a small percentage of those people sued.
Would Merck bribe judicial officers? Well lets look at some of their conduct.
“In 1999, an email was sent by an Australian employee of pharmaceutical giant Merck & Co with an idea to bring a Vioxx-friendly expert from the US to spruik the company’s new anti-arthritis drug, but who would pose at a seminar for doctors as an independent scientist.
The plan, according to the email tendered in the Federal Court class action against the company, was to get an expert who “favours” Vioxx to run an independent education session for medical specialists about the next generation of anti-inflammatory drugs.
The expert needed to be “street smart” enough to “drop a few concerns” about Merck’s rivals Searle and Pfizer and their products.
“Hi Warren (do people call you Wozza?), We have a plan, a cunning plan,” Merck associate product manager Russell Powter writes in the email to the company’s senior regulatory affairs associate, Warren Back.” (Click here to read the full article)
And in another article by The Australian:
AN international drug company made a hit list of doctors who had to be “neutralised” or discredited because they criticised the anti-arthritis drug the pharmaceutical giant produced.
Staff at US company Merck &Co emailed each other about the list of doctors – mainly researchers and academics – who had been negative about the drug Vioxx or Merck and a recommended course of action.
“We may need to seek them out and destroy them where they live,” a Merck employee wrote, according to an email excerpt read to the court by Julian Burnside QC, acting for the plaintiff. (Click here to the full article)
Based on the above Merck are hardly a company that play by the rules. And remember that the Reserve Bank of Australia has been bribing overseas officials for years so international bribery is hardly uncommon. And who can forget AWB bribing Saddam Hussein for years.
The three appeal court judges, Chief Justice Keane, Justice Bennett and Justice Gordon in the appeal that overturned the judgement of Justice Jessup say this at paragraph 206:
At the scientific or technical level as such, I would hold that the defect could not have been so discovered. The defect, of course, is the inadequate safety of the goods themselves. Vioxx was unsafe in that sense because it increased the risk of [MI]. However, it was not until September 2004 that that increase in risk could be “discovered” in the sense·of established at the scientific level. Merck was at the forefront of research in this regard (understandably, since rofecoxib was its own molecule). Merck’s own knowledge was the state of scientific knowledge to which s 75AK(l)© refers. (Click here to read the judgement)
To sit back and say Merck could not have known before 2004 is a joke. Have a look at their dodgy conduct above. And why did they settle for billions in the US. The three judges have gone looking for some evidence to justify their pre-determined judgement as Chief Justice Spigelman spoke about in a speech he gave last year. (Click here to read my post on Spigelman’s speech)
What Justice Jessup said in his judgement is “I have concluded that it was not until the unblinding of Merck to the cardiovascular data from the APPROVE study in September 2004 that the respondents knew or ought to have known that the consumption of Vioxx increased the risk of the occurrence of cardiovascular events. To that extent, the respondents’ submission is well-founded. However, the present question is whether that is one and the same thing as concluding that the defect which I have identified could not have been discovered by reference to the state of scientific or technical knowledge at the time.”
What Justice Jessup says is clearly different from what the three appeal judges say although maybe not immediately noticeable in a 100 page judgement.
But back to Slater & Gordon CEO Andrew Grech. For anyone in the legal fraternity to have a big swipe at judicial officers and the judiciary is almost unheard of mainly because of the damage it can do to their careers. Grech is running a publicly listed company and he cannot sit back and watch corrupt judges undermining his company.
It is disgusting. People have died and are dying and where are the Australian courts?
Slater & Gordon had the unloseable case. So how did they lose? Well I think the bank accounts of Chief Justice Keane, Justice Bennett and Justice Gordon need checking ASAP. And why did the High Court refuse special leave to appeal in such an important case? There is no justifiable answer.
As time goes on the voice of discontent with the joke that is referred to as the Australian judiciary will become louder and louder until it crumbles and it is forced to be rebuilt in a true and just manner.
For all the criticism that Slater and Gordon get including on this site, it good to see that Andrew Grech is standing up to be counted at least to some degree when it comes to judicial corruption.
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