A New Orleans jury began deliberating whether Merck & Co., the fourth biggest U.S. drugmaker, is responsible for the 2002 heart attack of a retired FBI agent who took the company’s Vioxx painkiller for more than four years.

The federal jurors must decide if Vioxx caused the heart attack of Gerald Barnett and whether the company failed to warn doctors about the product’s risks. Barnett’s attorney Mark Robinson told the jury that Merck knew of the withdrawn drug’s cardiovascular dangers and sold it anyway to boost profit.

“This is a case about responsibility,” Robinson told an 8-member, all-male jury in his closing arguments today. “This company has not taken responsibility in this courtroom. They put profit before people.”

Merck faces about 16,000 lawsuits over the cardiovascular risks of its painkiller Vioxx. Since July 2005, Merck has won five verdicts and lost three. Merck has been ordered to pay $298 million in damages, an amount that will drop to $48 million because of state caps on punitive damages.

Robinson asked for unspecified damages for his client’s pain and suffering. Whitehouse Station, New Jersey-based Merck has allocated about $1 billion for legal costs related to the suits and nothing for liability. It has vowed to fight every case.

Shares of Merck rose 33 cents to $41.28 as of 3:13 p.m. in New York Stock Exchange composite trading. They have risen about 25 percent this year.

Merck pulled Vioxx from the market in September 2004 after a study showed it doubled the risk of heart attacks in patients who used it for more than 18 months. Barnett, 62, took the drug for 31 months before his 2002 heart attack and kept taking it on the advice of his doctor for another two years until the withdrawal.

Pre-Existing Conditions

Lawyers for Merck said Barnett’s pre-existing conditions, including his age, stress level and a family history of heart disease, were the most likely causes of the heart attack. “Barnett had been experiencing plaque build-up for years,” which is normal for a man of his age and with his risk factors, Phil Beck, founding partner at Bartlit Beck Herman Palenchar & Scott in Chicago, told the jury.

Beck described Barnett’s heart attack as “small”, and said it helped his doctors discover how clogged his arteries had become, and to treat him successfully for this condition.

“There is no such thing as a good heart attack, but sometimes something small and bad that happens to you lets you avoid something much bigger and much worse,” he said.

During the two-and-half week trial, Merck lawyers said corporate scientists, including Briggs Morrison and Alise Reicin, kept regulators and doctors informed about the known risks of Vioxx. The company voluntarily withdrew Vioxx once it became aware of the increased heart attack danger, they said.

“Plaintiff’s lawyers asked you to believe people from Merck are monsters who don’t care if people are killed, as long as they make money,” Beck said. “They developed a medicine to relieve pain for millions of Americans.”

Robinson accused Merck of putting profits ahead of safety and misleading the public with a $161 million marketing campaign. Vioxx generated $2.5 billion in sales for Merck in 2004, about 11 percent of the company’s total revenue that year. The company also fought regulators who wanted to put a tougher warning label of bottles of Vioxx, he said.

“Merck said no,” because it knew that such a warning would cut sales of Vioxx by as much as $1 billion a year, Robinson said.

Barnett was an FBI agent for 27 years, serving in an anti-terrorism force and organized crime unit with Joe Pistone, the federal agent who infiltrated the Bonanno gang and whose story was made into the movie “Donnie Brasco” starring Johnny Depp.

Barnett took Vioxx as prescribed and sought to stay fit, said Robinson, a lawyer with Newport Beach, California-based Robinson, Calcagnie & Robinson. He has experienced a decline in energy and activity levels since his heart attack, Robinson said. Merck says Barnett’s lifestyle has been little changed.

The case is Barnett v. Merck, 06-485, U.S. District Court for the District of Louisiana (New Orleans).



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