Merck’s case-by-case strategy

posted on:
October 1, 2006

author:
Ross Todd

Nine jury trials into a docket of more than 14,000 cases, the early results in litigation surrounding Merck & Co., Inc.’s pain medication Vioxx are a mixed bag. The defense has chalked up four wins; a fifth defense victory, in New Jersey, was tossed out by a judge on August 17. Plaintiffs have won four jury verdicts-awards of $253.4 million in Angleton, Texas;

$13.5 million in Atlantic City, New Jersey; $32 million in Rio Grande City, Texas; and $51 million in New Orleans. (The New Orleans award was thrown out by a federal judge on August 30, although the verdict against Merck still stands.) With no global settlement in sight-Merck says it intends to litigate Vioxx claims case-by-case–both sides are poised for a long fight.

Merck voluntarily pulled Vioxx from the shelves in September 2004 after a company-funded study showed an increased risk of heart attack and stroke for people who took the drug for more than 18 months. Worries about the drug worsened in December 2005, when the New England Journal of Medicine expressed concern about an earlier Vioxx study it published that had excluded data indicating that three Vioxx users had heart attacks after the study’s cutoff date. In August, New Jersey state court judge Carol Higbee threw out a November 2005 jury decision in favor of Whitehouse Station, New Jersey-based Merck, citing the Journal ‘s correction as her primary reason. The case is scheduled to be retried before Higbee as part of a group of cases set for January. (Higbee is overseeing 7,100 Vioxx cases in New Jersey, about half the nation’s caseload.)

Plaintiffs lawyers say that the Journal Correction, combined with more effective depositions of medical experts, have strengthened their hand. "We’re becoming more effective at presenting our case," says Andy Birchfield, Jr., of Montgomery’s Beasley, Allen, Crow, Methvin, Portis & Miles, which represents about 7,000 Vioxx plaintiffs. Birchfield cotried a suit brought by Gerald Barnett, a retired agent with the Federal Bureau of Investigation who had a mild heart attack after taking Vioxx for 33 months. A federal district court jury in New Orleans awarded Barnett $50 million in compensatory damages and $1 million in punitive damages. The jury found that Merck did not adequately inform Barnett’s doctor of the risks of taking Vioxx and that the drug was the cause for his heart attack. Merck’s lawyers had argued that other risk factors including age, gender, family history, and a previously existing cardiovascular disease were contributing factors. Judge Eldon Fallon ruled in late August that the compensatory damage award was "grossly excessive" and ordered a new trial on the damages.

Merck’s trial counsel in the Barnett case, Philip Beck of Chicago’s Bartlit Beck Herman Palenchar & Scott, says despite the loss, he is convinced that Merck’s approach is the right one. "Merck as a company has decided that we will take these cases one at a time, and we’re going to look at the science [of each case]," he says. "The company will not be stampeded into some kind of global settlement." Theodore Mayer of New York’s Hughes Hubbard & Reed, which is Merck’s national coordinating counsel in the Vioxx suits, says the cases will "play out over a long period of time. . . . We can’t predict the outcome of any given case, but the jury verdict is only the first step." Merck has yet to pay out to plaintiffs; it has budgeted $1 billion for its Vioxx defense through 2007.

Still, jury verdicts this early in the process have emboldened some plaintiffs lawyers. "Juries are finding that Merck not only committed a wrong, but a serious enough wrong to award punitive damages," says plaintiffs lawyer W. Mark Lanier of The Lanier Law Firm in Houston. (Lanier was trial counsel in the first Vioxx suit, the Angelton, Texas, case that resulted in a $253.4 million verdict.) "I’m looking at the Vioxx docket as an annuity," Lanier quips. "There’s enough here to last my family for a lifetime to the fourteenth generation."

Despite Merck’s hard-line stance (and Lanier’s vision of Vioxx as an entitlement program), there are efforts to speed up the docket, most notably in federal district court in New Orleans, where Fallon is overseeing multidistrict Vioxx litigation. In an attempt to get a representative set of cases tried before juries, Fallon had both sides submit a slate of preferred cases (the Barnett case was a plaintiffs’ pick). Three more cases are scheduled to start by the end of 2006, two of which were selected by the defense. After that, Fallon has said he will bring both sides together sometime next year to assess where the federal litigation stands.

Until then, it appears that attorneys on both sides of the aisle will be logging plenty of long days in preparation for the courtroom. "My marching orders are to go forth and try these cases as best we can," says Beck. He and his colleagues might be marching for a while.

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