Representatives of both the drugmaker Merck and the Food and Drug Administration will be on Capitol Hill next week to answer safety questions about Merck’s drug Vioxx.

The pain medication was pulled off the market in September after research showed people taking Vioxx were at increased risk of heart attack or stroke. As NPR’s Scott Horsley reports, Vioxx was a blockbuster in the pharmacy, and it may now be a blockbuster in the courtroom.

Scott Horsley reporting:

When Merck introduced Vioxx five years ago, it called the drug its biggest, fastest and best launch ever. Vioxx had a bigger advertising budget than Pepsi-Cola, with consumer-friendly TV commercials featuring Olympic figure skater Dorothy Hamill.

(TV commercial)

Ms. Dorothy Hamill (Olympic Figure Skater): With all the great memories has come another thing I thought I’d never experience, the pain of osteoarthritis.

Unidentified Announcer #1: Vioxx is here, a prescription medicine for osteoarthritis pain. With one little pill a day…

Horsley: Now, six weeks after being pulled off the market, Vioxx is starring in a different kind of television ad.

(TV ad)

Unidentified Announcer #2: This is a medical alert from Jacoby and Meyers Law Offices for people who have taken the drug Vioxx. Recent studies show users of Vioxx may have heart attacks, strokes and even sudden cardiac death. If you’ve taken…

Horsley: Vioxx has gone from profitable painkiller to potential legal headache for Merck. Some 300 lawyers gathered at the Ritz Carlton Hotel in Pasadena this week for what one observer called the litigation kickoff feast.

Ms. Carlene Rhodes-Lewis (Attorney, Houston): I’m sure excited to have so many more people in the Vioxx litigation fold. We surely need the help.

Horsley: Houston attorney Carlene Rhodes-Lewis filed her first Vioxx case in 2001, and her law firm now has close to 300. Vioxx lawsuits are sure to multiply. By some estimates, the suits could cost Merck $12 billion or more. Montgomery, Alabama, lawyer Andy Birchfield, who chaired the Pasadena meeting, notes some 20 million Americans have taken Vioxx.

Mr. Andy Birchfield (Lawyer, Montgomery, Alabama): This was a widely prescribed drug. If you have an unanswered question about a risk for heart attack and stroke, how do you engage in that type of marketing campaign? That blows my mind.

Horsley: Merck said in a statement that the company acted responsibly every step of the way with Vioxx. But attorney Vance Andrus, a veteran of fen-phen and breast implant lawsuits, argues the company should have acted years ago when a clinical trial found patients taking Vioxx had four to five times as many heart attacks as those taking another drug, naproxen.

Mr. Vance Andrus (Attorney): Folks, this is in March of 2000. They kept this drug on the marketplace for another four and a half years. It should have been gone.

Horsley: Merck argued at the time that Vioxx wasn’t causing heart attacks; rather, naproxen was preventing them. The company also stressed that Vioxx caused fewer stomach problems than naproxen did. Still, plaintiffs’ attorneys have seized on internal documents suggesting that at least some Merck insiders recognized the increased cardiovascular risk. Merck’s own lawyers did not appear at the Pasadena conference, but defense lawyer Thomas Moore, who’s worked on similar cases, did. He says Merck has several things going for it, especially the fact that the FDA approved Vioxx and may challenge any effort to second-guess the agency’s decisions. Moore also thinks there’s been a shift in public attitudes towards this kind of lawsuit.

Mr. Thomas Moore (Defense Lawyer): Plaintiffs’ lawyers are no longer seen as the Davids to our Goliath. I think it’s more and more recognized now that plaintiffs’ lawyers have money. They’ve got coordination. They’ve got power, and they can do things, frankly, in certain jurisdictions that we on the defense side couldn’t dream of doing.

Horsley: Moore says last week’s presidential election further tilts the playing field in Merck’s direction. He suggests jurors today may be just as suspicious of trial lawyers as they are of corporate America. Scott Horsley, NPR News, San Diego.



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