Aug. 25, 2005 (Bloomberg) — Merck & Co., the third-largest U.S. drugmaker, now faces 4,951 lawsuits over the painkiller Vioxx in state and federal courts, or 15 percent more than a month ago, lawyers said.

The number of Vioxx suits filed has increased by more than 650 since mid-July, Merck’s lawyers told U.S. District Judge Eldon Fallon in New Orleans. Fallon is overseeing all federal litigation over the drug, which Merck pulled off the market after it was linked to increased risk of heart attacks and strokes.

Juries may hear some of those cases next year. Fallon today set trial dates for Feb. 13, March 13 and April 3 and urged lawyers to group their Vioxx claims. That requires attorneys to separate users who had heart attacks from those who suffered strokes. Those groups will be further divided by long-term or short-term use.

“Select the categories and then I’m interested in trying a case in each category,” Fallon said at a hearing. Picking one in each group will give attorneys with similar cases an idea of the value of their claims and their chances of winning at trial.

The first federal Vioxx case is set to start Nov. 28 in New Orleans. A Texas jury last week ordered Merck to pay $253 million to the family of Robert Ernst, who died at 59 after taking Vioxx for eight months. Merck has set aside $675 million to defend suits over the drug.

“We are pleased with these trial settings and the prospect of things going forward on a rapid basis,” Ted Mayer, an outside attorney for Merck at Hughes Hubbard & Reed, said. “By the last part of the second quarter of 2006, we’ll know a lot more about the parameters of this litigation.”

Shares of Whitehouse Station, New Jersey-based Merck fell 7 cents to $27.76 in New York Stock Exchange composite trading at 3:40 p.m. They have fallen 38 percent since Merck pulled Vioxx off the market in September, wiping out about $38 billion in market value.

Cases to Triple

The number of Vioxx cases in federal court will probably double or triple in the next six months from 1,811, Fallon said. The paperwork generated by the filings is forcing the court clerk’s office in New Orleans to hire more staff, he said.

Merck officials said the increase in cases between mid-July and mid-August wasn’t prompted by the Aug. 19 verdict handed down by a state court jury in Angleton, Texas over the company’s handling of Vioxx.

That decision was based on “flawed evidence” and is likely to be overturned on appeal, Merck lawyers contend. A state cap on punitive damages probably will cut the award to $26.1 million, lawyers said.

“I don’t think some of the evidence you saw in the Ernst case you will see” in the federal case starting in November, said Phillip Whittmann, a lawyer at Stone Pigman Walther Whittmann in New Orleans who is representing Merck. He wouldn’t be more specific about what evidence may be excluded.

Attorneys for Ernst’s family argued that Merck rushed Vioxx to market and played down its risks, citing e-mails in which Merck scientists expressed concerns and training materials that encouraged salespeople to dodge questions about safety.

Fallon initially set the April trial date for the fourth federal case over Vioxx for April 10. He later moved it up a week to accommodate attorneys’ vacation plans.

Early Dates

“We feel good about these early trial dates,” said Andy Birchfield, a lawyer with Beasley, Allen, Crow, Methvin, Portis & Miles in Birmingham, Alabama, who is representing Vioxx users in the federal cases. “We just want to make sure that right cases are tried in each of these representative categories.”

Birchfield will serve as one of the lead plaintiffs’ lawyers in the first federal suit set for trial in November. The case is expected to last two weeks, he said.

The family of Richard Irvin contends Vioxx caused his fatal 2001 heart attack and that Merck sought to hide the drug’s health risks. The 53-year-old manager of a seafood-distribution company in Florida had taken Vioxx for a month for back pain.

Next month, Merck faces claims in state court in Atlantic City, New Jersey, from a former Marine who alleges Vioxx caused his heart attack. Frederick Humeston says he took the drug for pain in his knees, one of which he injured in Vietnam.

His lawsuit is one of about 2,400 pending before New Jersey Superior Court Judge Carol Higbee, Merck lawyers told Fallon at today’s hearing.



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