Pharmacy Daily | US lawsuit Merck vs Bayer thrown out

A US judge this week dismissed Merck's lawsuit seeking to hold Bayer responsible for more talc-related liabilities stemming from its US$14.2b (A$20.9b) purchase of Merck's consumer care business in 2014, Reuters reported.

Vice Chancellor Nathan Cook of the Delaware Chancery Court said the purchase agreement "clearly and unambiguously" left Merck liable for claims related to products, including Dr. Scholl's foot powder, sold before the transaction closed.

The companies face potentially billions of dollars of liability from lawsuits by consumers alleging that asbestos contained in talc-based products such as Dr. Scholl's caused cancer.

Merck claimed that its liability ended on 01 Oct 2021, seven years after the transaction closed, and sued Bayer after the German company refused to assume liability.

But the judge called Bayer's interpretation of the purchase agreement "the only reasonable one", and said letting Merck "dump" cases would give the Rahway, New Jersey-based company an incentive to prolong or stall lawsuits.

"Nothing in the (agreement) indicates that the parties intended Bayer to assume liability for all of Merck's actions for the period during which it formulated, marketed, and sold the products" at issue, Cook wrote in a 37-page decision.

Merck said it was disappointed with the decision and planned to appeal.

Bayer did not immediately respond to a request for comment.

The US$14.2b (A$20.9b) purchase also included Merck's Claritin allergy medicine and Coppertone sunscreen lines.

Bayer separately inherited liability for litigation over whether the weedkiller Roundup causes cancer when it spent US$63b (A$93b) in 2018 to buy Monsanto.

In Jun 2020, Bayer agreed to settle much of that litigation for US$10.9b (A$16b).

As of Feb, about 109,000 of the 154,000 claims it faced had been settled or deemed ineligible, said Reuters.