Noerr-Pennington Doctrine Remains Controlling Law In Merck's Third Circuit US Court of Appeals: Mumps Vaccine Suits, Dismissed.

In general -- under controlling US law and regulations -- there are very few avenues to sue makers of life saving vaccines.

That was a considered Congressional policy decision, over a half century ago -- to encourage the provision of what are very low margin, but vital, vaccines to school children nationwide. [Rahway withdrew this vaccine in 2022 -- but we've been following various versions of this vaccine litigation since early 2010.]

Here is the latest on that piece of ongoing litigation. We will wait to see if the plaintiffs appeal to the Supremes, in the next 90 days.

. . .[Merck has won an appeal, that it is] immune from an antitrust lawsuit accusing it of misleading regulators about the effectiveness of its mumps vaccine in order to ward off competition, a federal appeals court ruled on Monday.

A 2-1 panel of the 3rd U.S. Circuit Court of Appeals found that Merck is protected by a legal doctrine known as Noerr-Pennington immunity, which states that parties cannot face antitrust claims for petitioning the government even if they are advocating for government action that would reduce competition. . . .

The plaintiffs said that Merck deliberately misled the FDA in order to prevent competition from GSK, violating the federal Sherman Act and state consumer protection laws. U.S. District Judge Chad Kenney in Philadelphia last year granted Merck summary judgment on the state law claims but let the Sherman Act claim go forward, and Merck appealed.

But the majority of the 3rd Circuit panel, reversing Kenney's ruling, found in Monday's non-precedential opinion that Noerr-Pennington immunity held even if Merck's actions were "unethical." "The record contains troubling evidence that Merck sought to extend its apparent monopoly by misrepresenting facts about its mumps vaccines on the FDA-approved drug labeling," Circuit Judge Tamika Montgomery-Reeves wrote for the panel.

"But those allegedly false claims were the result of Merck's genuine and successful petitioning of the FDA. . . ."

Now you know. Do "enjoy" the likely spotty cell coverage today -- but also marvel at the citizen-generated Northern Lights pics. . . rolling in at local weather stations, and web-sites -- all day! [See the new masthead, from my baby sister, high in the Rockies overnight!]

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