After seven weeks of testimony and often heated legal wrangling, a jury of six women and three men began deliberations here on Tuesday in Humeston v. Merck, the second Vioxx-related lawsuit to go to trial.
The jury received the case after a two-hour closing argument from the plaintiff’s lawyer, Christopher Seeger, who urged jurors to hold Merck accountable for hiding information about Vioxx’s heart risks from doctors.
Mr. Seeger represents Frederick Humeston, 60, an Idaho postal worker who suffered a heart attack in 2001 after taking the pain medication Vioxx for less than two months.
Speaking without notes, Mr. Seeger led jurors through dozens of documents as well as complex scientific descriptions of the way Vioxx may affect the blood’s ability to clot.
Internal company documents and e-mail messages from Merck scientists, including Edward M. Scolnick, Merck’s former research head, showed that the company had known of Vioxx’s dangers long before it stopped selling the drug in 2004, Mr. Seeger said. The company had failed to warn doctors of those risks because it feared losing as much as $1 billion in Vioxx sales, he said.
Mr. Seeger also chastised Merck and its lawyers for attacking the credibility of his client, Mr. Humeston. In her closing argument on Monday, Diane Sullivan, a lawyer for Merck, said that Mr. Humeston had not proven that he had even taken Vioxx in the weeks leading up to his heart attack.
“I had no idea my client would be called a liar and attacked,” Mr. Seeger said.
In disparaging Mr. Humeston, Ms. Sullivan was trying to divert the jury from Merck’s misconduct, Mr. Seeger said. He urged jurors to stay focused on the scientific evidence, and he repeatedly compared Merck to an octopus that squirts jets of ink as a way to hide when it is in trouble.
“What you’ve seen from Merck is an act of desperation,” he said.
Near the end of his argument, Mr. Seeger walked jurors through the two-page verdict form. The jury must decide whether Merck caused Mr. Humeston’s heart attack by failing to warn his doctor about Vioxx’s dangers, and also whether Merck committed consumer fraud by lying and committing “unconscionable commercial practices.” The answer to those questions is yes, Mr. Seeger said.
After Mr. Seeger’s closing arguments, Judge Carol Higbee, who is overseeing the case in Atlantic County Superior Court, gave the jury about 45 minutes of instructions concerning the standards that they should use to weigh evidence and decide the case.
Originally, the jury consisted of six regulars and four alternates, but one juror was allowed to be dismissed, and both sides agreed to allow the remaining alternates to vote as regulars. So the nine jurors will decide the case, with seven votes required for a judgment on each allegation. The jurors deliberated for just over an hour before breaking for the day.
Merck stopped selling Vioxx, an arthritis medicine and painkiller, in September 2004, after a clinical trial showed that the drug raised the risk of heart attack and stroke.
Some epidemiologists have estimated that as many as 100,000 people may have suffered heart attacks as a result of taking Vioxx, a figure the company disputes. Shares of Merck, the third-largest American drug maker, have fallen about 40 percent since the company removed Vioxx from the market.
In August, a jury in Angleton, Tex., found Merck liable in the first Vioxx case to go to trial, and awarded $253 million to Carol Ernst, the widow of a man who died of an irregular heartbeat in 2001 after taking Vioxx for seven months. Texas law would limit the award to $26.2 million, and Merck has vowed to appeal.
Neither side expects the jury in Atlantic City to return a verdict like the one in Texas, in part because Mr. Humeston suffered only mild damage from his heart attack, according to his own doctors.
Mr. Humeston also appeared to be a less sympathetic plaintiff than Ms. Ernst. Evidence at the trial showed that he complained repeatedly in writing about his workload to his supervisors at the post office, which investigated his ability to work in summer 2001.
Mark Lanier, who represented Ms. Ernst, is considered among the nation’s top trial lawyers, and he dominated Merck’s trial team in Texas. In this case, the two sides appeared more evenly matched, although Judge Higbee admonished Ms. Sullivan repeatedly for what the judge characterized as improper conduct.