Merck Wins 2nd Vioxx Lawsuit

Unlike first case, plaintiff failed to prove drug caused his heart attack

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By E.J. Mundell
HealthDay Reporter

THURSDAY, Nov. 3, 2005 (HealthDay News) -- In the second case of its kind, a New Jersey jury on Thursday agreed with drug maker Merck & Co. that a 60-year-old man's heart attack was not triggered by use of the company's now-banned painkiller Vioxx.

Lawyers and business analysts had kept a close watch on the trial, one of approximately 6,500 Vioxx-related suits in the pipeline.

The new verdict was in direct contrast to the decision in the first trial. In August, a Texas jury found against Merck and awarded the widow of a Vioxx user, Robert Ernst, $253 million in damages. State caps on punitive damages will reduce that payout to just a tenth of the amount, however.

Legal expert Anthony Sabino, a professor of law at the Tobin College of Business at St. John's University in New York City, said it's far too early to draw any conclusions about what either of these verdicts means for Merck over the long term.

"The plaintiff won the first one in Texas, now it's Merck's turn -- these cases are going to go up, down and sideways," he said. "So anyone who sits there and tells you, 'Oh, I can draw this conclusion or that,' is wrong."

According to the Associated Press, the nine-member jury in Atlantic City took less than eight hours to clear Merck of the charge that it had failed to warn consumers of known risks linked to Vioxx and that it had engaged in "unconscionable commercial practices" in marketing the painkiller to doctors and patients.

In September 2004, Vioxx became the first of two highly popular cox-2 inhibitor medications to be pulled from drugstore shelves after a major clinical trial linked long-term use of the drug to an increased risk of cardiovascular problems. The other now-banned drug is Pfizer's Bextra, pulled last spring. A third cox-2, Celebrex, remains in pharmacies, but with strongly worded labeling warning of potential risks.

The plaintiff in the New Jersey trial, Frederick "Mike" Humeston, of Boise, Idaho, suffered a minor heart attack two months after he began taking Vioxx to ease the discomfort of a knee injury sustained during the Vietnam War. Humeston, who appeared relatively healthy during the trial and is a hiker and former mountain guide, said he took two Vioxx pills within hours of his Sept. 18, 2001, heart attack, according to the AP.

Humeston's lawyer, Chris Seeger, told jurors his client would never have taken the painkiller had he known it might increase his cardiac risk.

But lawyers for Merck stressed that, at the time, prescription Vioxx had already been approved repeatedly for use against various types of pain by the U.S. Food and Drug Administration. They also argued that Humeston had other complicating health factors such as high blood pressure, being overweight, and ongoing stress from a work dispute that probably caused his heart attack.

Sabino said those facts may have caused doubt among jurors.

"In the Texas case, [the plaintiff's lawyers] were able to convince the jury that there was a clear, causal link between Mr. Ernst taking Vioxx and his death. But in this case there was by no means any clear-cut link," Sabino said. Instead, Merck's lawyers "pointed to [Humeston's] intermittent use of Vioxx, they put into doubt whether he'd been on Vioxx on any regular basis just prior to his heart attack. They also pointed to his other risk factors."

Outside the courtroom, Merck lead counsel Diane Sullivan told the AP she felt "pretty good. I'm proud of the folks at Merck."

Seeger, representing Humeston, said he wanted to "reassess what went wrong here. My desire to try more cases is way up right now. Merck [corporate headquarters] is based in New Jersey. Maybe that factored into this jury pool."

Juror Vickie Heintz told the AP that she thought Humeston's health history was too complicated to pin the blame on Vioxx. "His medical records were riddled with many medicines," she said.

Merck's stock rose $1.35 per share as news of the verdict arrived midday Thursday.

The New Jersey trial was just the beginning of a long legal battle for Merck, which has said it plans to fight future Vioxx cases one by one. "Fighting it one-by-one is good for Merck because it's a huge operation," Sabino said. "They have tremendous resources and it's a legal war of attrition."

He also said Merck may be focusing especially hard on lawsuits in which it believes it has a fair chance of prevailing. "Merck figures that the odds are with them over the years to fight them," Sabino said.

If plaintiffs do come up with "credible scientific data" that the company knew about Vioxx-related heart risks beforehand and ignored or covered them up, that could greatly sway the results of future cases, Sabino added. "But what I've seen so far -- and it's far from the end of the day here -- is that [plaintiffs] have yet to show that," he said.

In any case, he said, these first two trials are certainly no indicator of a trend.

"This is like a thousand-piece puzzle, and you only have put two pieces on the table. Who knows what the rest of it is going to look like?" Sabino said.

More information

For more on cox-2 inhibitor painkillers, visit the U.S. Food and Drug Administration.

SOURCES: Anthony Sabino, professor, law, Tobin College of Business, St. John's University, New York City; Nov. 3, 2005, Associated Press

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