“If the government knows it’s being defrauded, then fraud is OK” 3rd Circuit Court Gives MERCK a Pass
A federal appeals court today dismissed a lawsuit against Merck alleging the company misled the Centers for Disease Control and Prevention (CDC) by “omitting, concealing and misrepresenting” information about the potency of its mumps vaccine.
The U.S. Court of Appeals for the 3rd Circuit upheld a July 2023 U.S. District Court decision in United States ex rel. Krahling v. Merck & Co., which found that even though Merck may have made false claims to the CDC, those claims didn’t play a role in the agency’s decision to purchase the vaccine for its Vaccines for Children Program.
“Even if we assume, as the District Court did, that Merck made misrepresentations (i.e., false claims), based on our de novo review of these considerations, no reasonable jury could conclude that the representations were material to the CDC’s purchasing decisions,” the ruling stated.
In other words, the judges said that even if the evidence shows the government knew about Merck’s misrepresentations and data falsification related to its mumps vaccine because the U.S. Food and Drug Administration (FDA) was aware of the behavior and the CDC continued to purchase the vaccine with that knowledge, the company was not in violation of the False Claims Act.
According to the ruling, the alleged fraud — misrepresenting and falsifying data about vaccine testing, potency and shelf life — was “minor or insubstantial.”
‘This is big money winning in court’
Attorney Mary Holland, CEO of Children’s Health Defense (CHD), told The Defender she was “astonished” the court could reach such a conclusion. “It’s a very sad day for justice.”
Holland said:
“The Court remarkably found that Merck’s alleged violations were ‘minor and insubstantial,’ defying logic. A decision like this makes people lose faith in courts as arbiters of justice.
“The plaintiff whistleblowers filed this False Claims Act case against Merck in 2010, over 14 years ago. They detailed outrageous fraud upon fraud by Merck, with apparent collusion by the FDA, to falsify the potency of the mumps component in the measles-mumps-rubella vaccine for which Merck held a patent.”
Brian Hooker, Ph.D., CHD’s chief scientific officer, said the decision makes it clear that Merck defrauded the government and the U.S. public and the company has been selling a defective product that has never has been appropriately tested for safety or efficacy and is known to lead to breakthrough mumps infections.
He added:
“However, in their conclusion, the court detailed how CDC can wave their magic wand and make this whole episode go away. The CDC simply colluded with Merck by buying and then foisting a defective product onto America’s children.
“Evidently, if the government knows it’s being defrauded, then fraud is OK — regardless of the collateral damage.”