Confessions of a Quackbuster

This blog deals with healthcare consumer protection, and is therefore about quackery, healthfraud, chiropractic, and other forms of so-Called "Alternative" Medicine (sCAM).

Friday, November 04, 2005

Merck Prevails in Second Vioxx Case on Heart Attack

Merck Prevails in Second Vioxx Case on Heart Attack

By ALEX BERENSON

Published: November 4, 2005

ATLANTIC CITY, Nov. 3 - The drug giant Merck won decisively Thursday in the second Vioxx-related personal injury case to go to trial, an outcome that legal experts say could slow the flood of lawsuits against the company.

Two lawyers for Merck, Diane Sullivan and Stephen Raber, react to the jury's verdict Thursday. The company faces 2,900 suits in New Jersey.

A nine-member jury in a state court here found by an 8-to-1 vote that the painkiller Vioxx had not caused Frederick Humeston, a 60-year-old Idaho postal worker, to have a heart attack in September 2001. Mr. Humeston, who survived, testified in the case.

Perhaps just as significant for Merck, which is already the subject of thousands of Vioxx cases and in August lost the first one to go to trial, the jury concluded unanimously that the company had properly marketed the drug. Vioxx was taken by 20 million Americans between 1999 and 2004. Merck stopped selling it after a clinical trial linked the drug to heart attacks and strokes in patients taking Vioxx for 18 months or longer.

The case was heard in Atlantic County Superior Court before Judge Carol E. Higbee, who is overseeing more than 2,900 suits filed in state court in New Jersey against Merck, which is based in Whitehouse Station, N.J. In all, more than 6,400 lawsuits have been filed against Merck in state and federal courts, and tens of thousands more are expected.

At a news conference after the verdict, Vickie Heintz, a juror, said that lawyers for Merck had convinced her that Mr. Humeston's heart attack had probably resulted from stress and anxiety, not from Vioxx. Mr. Humeston took Vioxx for less than two months before his heart attack.

"I just think Mr. Humeston had way too many health issues to pinpoint it to Vioxx," Ms. Heintz said. "Stress was a huge factor in my decision." The jury deliberations, which lasted for nine hours over three days, were largely free of rancor, Ms. Heintz said.

Lawyers for Merck said they were pleased that the jury had decided that Merck did not conceal Vioxx's risks from doctors or consumers, even though company documents and e-mail messages show that Merck scientists were concerned about Vioxx's potential heart dangers as early as 1997.

"The company did provide information fully and promptly to the regulatory and scientific community," Kenneth C. Frazier, Merck's senior vice president and general counsel, said in a conference call with reporters after the verdict.

Merck and federal regulators continue to discuss the possibility of returning Vioxx to the market, Mr. Frazier said. Merck's shares rose $1.07, or 3.7 percent, after the verdict, closing Thursday afternoon at $29.48.

Merck's lawyers hugged and kissed after Judge Higbee read the verdict in the Atlantic County Superior Courthouse just before 11 a.m. Two members of the Merck trial team began to cry.

The decision comes less than three months after a Texas jury found Merck liable in the first Vioxx case to reach trial and awarded the plaintiff - the widow of a man who took the drug - $253 million, a decision that caused Merck stock to fall 8 percent that day. Texas law limits that award to $26 million, and Merck has vowed to appeal the case.

"We do have a good story to tell, and we are fully committed to telling it," Mr. Frazier said.

Merck this time also benefited from an evidently less sympathetic plaintiff, compared with the grieving widow in Texas. Letters that Merck lawyers showed to the jury indicated that Mr. Humeston often complained to his United States Postal Service supervisors about his workload. And the jury was told that the Postal Service was investigating Mr. Humeston as a suspected malingerer.

Christopher Seeger, Mr. Humeston's lawyer, sometimes seemed to struggle to connect with the jury. Ms. Heintz, one of only two jurors to speak to reporters after the verdict, said that Mr. Seeger and the other lawyers for Mr. Humeston "were like barracudas."

Mr. Seeger said afterward that the verdict was unfair and wrong but acknowledged that he shared responsibility for the loss.

"I'm going to be second-guessing myself for the way I tried this for many months," Mr. Seeger said afterward. "Obviously, the jury rejected Humeston."

Mr. Humeston - who has essentially recovered from the heart attack, his own cardiologists say - told reporters afterward that he still believed that Vioxx was "a poison pill" and that he hoped the verdict did not prevent other people from "bringing their cases forward."

Some legal experts said the case might discourage plaintiffs' lawyers from filing some marginal cases against Merck, especially in instances where patients took the drug for only a couple of months before suffering a heart attack, lawyers and analysts said. Still, both sides agreed that many more trials are coming.

Mr. Seeger vowed to move forward with other lawsuits he has filed, and Mr. Frazier said Merck planned to defend every lawsuit against the company. The next Vioxx trial is scheduled to begin in federal court in Houston on Nov. 28, and it is widely viewed as an even weaker case than Mr. Humeston's. Although the case in Houston involves a man who died of a heart attack, he had taken Vioxx for only a month before his death. And instead of the defense team that lost last time in Texas, Merck's defense will be led this time by Phil Beck, a prominent trial lawyer.

Dr. David Egilman, an epidemiologist and physician who testified against Merck in the first Vioxx trial, said of the coming trial in Houston, "As I understand the facts in that case, if Merck asked me my opinion in that case, my opinion would be that Merck was not responsible."

The federal trial in Houston will be followed by one in New Jersey state court, scheduled to begin in Atlantic City on Jan. 9, again before Judge Higbee. That case could prove pivotal in clarifying the boundaries of Merck's liability.

W. Mark Lanier, the plaintiffs' lawyer who won the first case against a different team of Merck lawyers in Texas, said yesterday that he had been asked to be the lead attorney in the January trial and planned to participate. Mr. Lanier said the size of the verdict he won in Texas might have given other lawyers a false impression that defeating Merck was easy.

Presenting complex scientific evidence to juries is difficult, Mr. Lanier said. The Texas verdict "made people think this is an easy thing to do, and it's not," he said. "It's very, very hard."

The verdict here Thursday does not undo all the damage that Merck suffered in the Texas case, legal analysts said, but it gives new life to the company's strategy of taking each case to court instead of trying to arrange a huge settlement. "This is a marathon," said David Eisbrouch, a plaintiffs' lawyer who was not involved in the Humeston case but who watched much of the trial. "This is the very beginning of the litigation."

Mr. Eisbrouch said he believed that Merck would attack the motives and credibility of plaintiffs whenever possible in future cases. "They've learned to attack and not try the case on the science," he said.

But Mr. Frazier, Merck's general counsel, said the company believed that jurors needed to know the truth about Mr. Humeston's history of work-related complaints and stress.

"It is never our goal to attack anybody on the witness stand or anywhere else, but there is an awful lot at stake in these cases," Mr. Frazier said. "We're entitled to cross-examine people."

While the plaintiffs and the lawyers on both sides were different in the New Jersey and Texas trials, most of the evidence was similar, and some witnesses testified in both cases.

Lawyers for Merck argued that the company did not have definitive proof before last year's clinical trial results that Vioxx increased the risk of heart attacks and strokes. Merck contends that it did everything possible to test for those risks after a clinical trial in 2000 indicated that patients taking Vioxx for a year or less had five times as many heart attacks as those taking naproxen, an older painkiller.

But Mr. Seeger pointed to dozens of e-mail messages and Merck documents in which company scientists discussed their concerns about Vioxx's risks and said they would fight regulators at the Food and Drug Administration who wanted the drug's warning label to display the results from the 2000 clinical trial.

Mr. Seeger, who has several hundred more Vioxx cases pending, said he looked forward to getting another chance against Merck. "Right now," he said, "it is 1-1."




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