Merck & Co., ordered last week to pay $253 million in damages to the family of a former Vioxx user, is likely to face much of the same evidence in the next case over the painkiller, the plaintiff’s lawyer said.
"I’m not sure the evidence is going to differ greatly,” said Chris Seeger, who will represent former Marine Frederick M. Humeston in a trial slated to begin in Atlantic City Sept. 12. ‘’The evidence is there. There are very compelling documents.” Humeston blames Vioxx for his 2001 heart attack.
A state court jury in Angleton, Texas, on Aug. 19 ordered Merck to pay damages to the family of Robert Ernst, a 59-year-old marathoner who died in 2001 after taking Vioxx for eight months. Merck plans to appeal and says it will fight each case filed against it. Seeger, of the New York law firm Seeger Weiss, declined to say how much he will seek in damages.
"I don’t have an expectation of a $200 million verdict,” Seeger, who represents more than 500 Vioxx users, said. ‘’I expect justice for my client.”
The Texas verdict probably will be cut to $26.1 million because of that state’s cap on punitive damages, lawyers say. New Jersey limits punitive damages to five times compensatory damages, or $350,000, whichever is greater, according to the American Tort Reform Association’s website.
Merck shares rose 25 cents to $27.83 in New York Stock Exchange trading after falling for four straight sessions.
Whitehouse Station, N.J.-based Merck withdrew Vioxx in September. The drug accounted for 11 percent of the company’s sales last year of $23 billion. Studies showed some users had a five times greater risk of heart attacks and strokes than those taking other painkillers.
An advisory panel with the Food and Drug Administration has determined that drugs in the same class as Vioxx, including Pfizer Inc.’s Celebrex and Bextra, all have increased heart risks. Pfizer suspended sales of Bextra and changed the label for Celebrex, the world’s best-selling arthritis medicine.
Merck argues that it disclosed the risks of heart attacks and strokes linked to Vioxx. The Texas verdict was "based on flawed evidence” and will probably be overturned, said James Fitzpatrick, a lawyer with New York law firm Hughes Hubbard & Reed who is representing Merck.
"We intend to present what we believe is strong evidence that Merck had no liability” over its handling of Vioxx, Fitzpatrick said in response to Seeger’s comments.
Mark Lanier, who represented Ernst’s widow in the Texas case, argued during the trial that Merck rushed Vioxx to market without proper testing and then played down the risks to boost sales. As evidence, Lanier introduced e-mails dating to 1997 in which Merck scientists expressed concerns about Vioxx’s heart risks, and training materials that encouraged salespeople to dodge doctors’ questions about the drug’s safety.
Seeger yesterday contended that Merck stumbled under the direction of Ray Gilmartin, the first nonscientist to run the company. Gilmartin was replaced in May by Richard Clark.
"Where it’s marketing over science, you’re going to have a big hit and you’re going to have these problems,” he said.
Seeger said Merck’s links to New Jersey won’t give the company an advantage in the Atlantic City case.
"This is Merck’s home state, but New Jersey juries award verdicts against New Jersey companies all the time,” Seeger said. ‘’If you show them the evidence, they’ll do the right thing.”
Humeston says he took the drug for pain in his knees, one of which he injured in Vietnam. His lawsuit, one of about 2,200 pending before state Superior Court Judge Carol Higbee, alleges that Merck defectively designed Vioxx and failed to warn consumers about its cardiovascular risks.