Merck & Co., with one victory and one loss in Vioxx lawsuits tried in state courts, may win the first federal trial over the painkiller, lawyers said.
The family of Richard “Dicky” Irvin will argue in a case that starts today in Houston that the Florida man’s fatal heart attack was caused by the Vioxx that he took for 23 days.
Merck fended off a court challenge earlier this month by an Idaho man who took the drug for more than twice as long. A second victory would bolster Merck’s argument that the drug doesn’t harm short-term users and reduce pressure on the company to settle about 6,500 Vioxx lawsuits filed against it. Merck set aside $675 million to fight Vioxx claims and nothing for possible liability.
“Merck has all the ingredients here for another win,” said Charles Parker, an attorney for the Houston firm of Locke Liddell & Sapp who represents former users of the fen-phen diet combination in suits against the drugmaker Wyeth. “They have a short-term use case that’s being tried in federal court, which is a more conservative venue than state court.”
Shares of Merck, the third-largest U.S. drugmaker, have fallen by a third since the company pulled Vioxx off the market in September 2004. Studies showed patients who used it for at least 18 months had an increased risk of heart attack or stroke.
Merck may have an edge in federal court, where judges are more likely to limit the evidence that can be used to prove product-liability cases, said Thomas Reed, a law professor at Widener University in Wilmington, Delaware, who forecasts a Merck victory. Merck also has strengthened its defense team by adding Philip Beck, a former U.S. Justice Department litigator who represented President George W. Bush in the 2000 election fight.
“They’ve put us in the underdog role,” said Jere Beasley, a partner in the Montgomery, Alabama, firm Beasley, Allen, Crow, Methvin, Portis & Miles who is representing Irvin’s family.
Irvin’s lawyers did win one advantage Nov. 18 when a federal judge rejected Merck’s request to exclude evidence of tests that show Vioxx can cause harm even in short-term usage.
In August, Merck lost its first Vioxx trial in Texas state court and was ordered to pay $253 million to the widow of a man who died after taking the drug for seven months, an amount that will be reduced to $26 million under state law. The company, based in Whitehouse Station, New Jersey, won the second trial before a jury in its home state on Nov. 3.
U.S. District Judge Eldon Fallon, who is presiding over the Houston case, has said he expects it to last three weeks. Fallon moved the trial from his New Orleans courtroom after Hurricane Katrina left much of that city under water.
Irvin, who managed a seafood distributor in St. Augustine, Florida, died of sudden heart attack in 2001 at age 53. The 6- foot, 230-pound former college football player had been taking Vioxx for about three weeks for lower-back pain.
No Heart Problems
Irvin had no history of heart problems, Beasley said last week. The family’s experts will testify that Vioxx caused the blood clot that led to a fatal irregular heartbeat, citing studies that showed some people who took the drug for fewer than 30 days suffered heart attacks.
Merck’s lawyers blame Irvin’s death on his age, weight, clogged arteries and family history, and they will argue that company researchers found a link between Vioxx and heart problems only among people who used it for 18 months or more.
Irvin’s “obesity and sedentary lifestyle caused his death—much like they do each year for tens of thousands of American men in their 50s who have never taken Vioxx,” Merck’s attorneys said in court filings.
Merck’s case will be led by Beck, 54, of Chicago’s Bartlit Beck Herman Palenchar & Scott. Beck was the U.S. government’s lead lawyer in its 2001 antitrust case against software maker Microsoft Corp. Two years ago, he successfully defended Bayer AG in the first trial over claims that the Baycol cholesterol medication caused a potentially fatal muscle-weakening disease.
‘Excellent Trial Lawyer’
“He’s an excellent trial lawyer who will be effective in presenting Merck’s case,” Parker said.
Beck will probably get a sympathetic hearing in the Houston court, which draws jurors from a section of southern Texas that votes for pro-business Republicans, Parker said. The area is home to former President George H.W. Bush and U.S. Representative Tom DeLay, who stepped down as House majority leader in September after his indictment on state money- laundering charges.
Mark Lanier, the Houston lawyer who beat Merck at the first trial in Angleton, Texas, says the Irvin family still has a chance to do the same.
“I don’t think it makes any difference where you try the case, state or federal court,” Lanier said. “It’s how you present your case and how you handle the other side’s witnesses that matters.”