Lawyers switched legal tactics for the retrial of the first federal Vioxx case, working to convince jurors that manufacturer Merck & Co. ignored safety in favor of sales, rather than opening with medical testimony.
That approach is much closer to an earlier trial in a Texas state court, in which jurors decided Merck should pay $253.4 million, than to the original federal trial. The federal trial ended with a hung jury; jurors reached afterward said the deadlock was 8-1 in Merck’s favor.
Evelyn Irvin Plunkett claims that taking Vioxx for a month caused the heart attack which killed her husband Richard “Dickie” Irvin in 2001, and that Merck hid the dangers of its product from scientists and the public.
In the Texas trial, the first witnesses were physicians and pathologists who explained why they believed that Vioxx had caused the heart attack. Merck contends that the heart attack was caused by a 30-year buildup of plaque in his blood vessels and had no relation to Vioxx.
This time, the first three witnesses all worked in Merck’s marketing or public relations department. On Tuesday, off-camera attorneys questioned J. Martin Carroll, who was executive vice president of marketing in 2001, and Jan Weiner, executive director of public affairs, about why information about heart attacks wasn’t part of marketing or press materials.
“It’s not a change of tactics,” just a matter of bringing in evidence which became available after the first trial, said Russ Herman, head of the federal plaintiffs’ steering committee and spokesman in this trial for Plunkett, said Monday.
The first witness, whose testimony was played Monday afternoon, was asked about internal correspondence including a reference to a “bad guys list” of doctors who questioned the drug’s safety, and a memo listing “physicians to neutralize.”
The “neutralize” list was among the first evidence brought up in the earlier state trial in Angleton, Texas. However, Herman said the legal team didn’t have other documents to support their claim that Merck used “junk science.”
The e-mail nomination of a doctor to the “bad guys list” had been sent to Baumgartner. “That wasn’t my phrase,” she said. She said “neutralize” meant to provide correct information so those doctors would “come to a neutral or fair position,” she said.
In rebuttal testimony played for the jury Tuesday, she said she got a pharmacology doctorate to follow her father’s footsteps, and worked for Merck because it embodied her values of putting patients first. Meetings which the plaintiff’s attorney had characterized as attempts to change doctors’ minds included physicians whose opinions crossed the spectrum, because the aim was to learn what they thought, she said.
Merck did not put on any rebuttal video for Carroll or Weiner. It didn’t need to because the witnesses were clear, spokesman Kent Jarrell said.
“This case is all about causation. That is the most important part of the case,” he said. “Marketing doesn’t go to the point because the prescribing doctor never reviewed the literature and never met with marketing representatives” from Merck.
Carroll, who now is president and chief operating officer of Boehringer Ingelheim Pharmaceuticals Inc., of Ridgefield, Conn., was shown several Merck studies in which patients taking Vioxx had more heart attacks and other cardiovascular problems than those given another drug or sugar pills. He said he hadn’t seen them before.
They were written while Carroll was at Merck, and its sales representatives had information cards saying Vioxx was about as safe for the heart as a sugar pill.
“This says the trend is against Vioxx. Not similar. Right?” an off-camera attorney asked.
“That’s what it says,” Carroll answered.
A bit later, the attorney asked, “Did you share this information with doctors?”
That wasn’t information for salespeople they have to stick to what’s on the label and packaging insert, Carroll said. Doctors have plenty of other information sources, such as medical conferences, meetings and publications, he said.