Merck Faces more Challenges in Next Round

posted on:
August 20, 2005

author:
Theresa Agovino

 Drug-maker Merck & Co.’s blistering defeat in the nation’s first Vioxx trial was only round one in a series of expected court battles in the coming months, many of them involving plaintiffs who have some major advantages. 

The link between the patients’ health problems and Vioxx is already well established. They suffered heart attacks; Merck yanked the drug from the market last year because a study showed it doubled patients’ risk of heart attacks and strokes.

In contrast, Carol Ernst’s lawyer in last week’s lawsuit had to link Vioxx to heart arrhythmia, or irregular heartbeat, the condition that killed Ernst’s husband. Doing that required a lot of complicated medical testimony.

The jury still sided with Ernst, awarding her $253.4 million, though the amount will be reduced because of Texas laws.

Ernst’s victory gives lawyers in the upcoming cases something of a playbook for arguing that Merck acted recklessly when it promoted Vioxx. The company’s loss is also expected to prompt more lawsuits, on top of the 4,200 already pending. The company’s potential liability has already been estimated at up to $18 billion.

Merck does have some strengths in the upcoming litigation that it didn’t have in the Texas case.

One of the cases is in federal court, where experts say stricter rules of evidence and testimony may benefit the New Jersey-based drug maker.

Legal experts said some of the testimony allowed in the Texas trial probably would not have been permitted in federal court, especially the surprise testimony from a coroner that a heart attack could have led to the fatal arrhythmia. Merck said its appeals will include claims that the judge erred by allowing testimony from unqualified experts and the undisclosed witness.

The federal case may be Merck’s best shot at an early win, and the company desperately needs a victory if it doesn’t want to be pressured into settling cases en masse, experts said.

“Federal judges are more cautious about what experts can testify in a case like this (product liability). There are stringent guidelines,” said Benjamin Zipursky, a professor at Fordham Law School in New York.

The first federal trial may also present a challenge for the plaintiff because Richard Irvin had only taking Vioxx for about a month before he died of a heart attack in 2001 at age 53.

The study that led Merck to remove Vioxx from the market last year found cardiovascular problems only manifested themselves after 18 months of use. Plaintiff lawyers say other studies point to problems much earlier.

“I expect Merck to make an issue about short-term use, but I’m not worried,” said attorney Andy Birchfield, who is representing Irvin’s widow. Birchfield said Irvin didn’t have any major risk factors for a heart attack, although he was slightly overweight. The case will be heard in federal court in New Orleans in November.

Merck declined to comment for this story. In a statement, company general counsel Kenneth Frazier said plaintiffs face a challenge in proving Vioxx caused anyone’s death or injury.

The next case is slated to begin next month in Atlantic City, N.J., and revolves around postal worker Michael Humeston, who had been taking Vioxx for two months before he suffered a heart attack four years ago.

He survived and returned to work on limited duty, but his lawyer, Chris Seeger, said Humeston has permanent heart damage. His condition prevents the former Marine from enjoying favorite pastimes such as camping and hunting because his doctors don’t want him too far from a hospital, Seeger said.

“Merck told so many lies. Why should a jury believe them on the 18 months issue,” Seeger said. “I think juries have their own gestalt. They go through the evidence and they parse it together.”

Jurors in the Texas case didn’t seem particularly concerned about how long Bob Ernst took Vioxx before he died. Far more compelling to them were the multitudes of company e-mails and documents which suggested the company knew about the drug’s safety problems but ignored them to pump up profits.

While some of the materials that Ernst’s lawyer Mark Lanier used might not be admitted at the federal court level, experts said enough of the damaging documents likely would be allowed.

Merck also may find itself facing Lanier again soon. He was scheduled to try a wrongful death case next month in Edinburg, Texas, but asked that it be postponed because of potential time conflicts with the trial he just finished. The trial, which centers on a 39-year-old woman who died of a blood clot in 2001 after taking Vioxx for about a month, could begin in October.

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