Texas Vioxx Verdict May Spur Changes In Defense Trial Strategy

posted on:
August 29, 2005

author:
Nora Lockwood Tooher

On Aug. 19 a jury in Angleton, Texas found Merck & Co. liable and ordered the company to pay $253.5 million to the widow of Robert Ernst: a 59-year-old triathlete who died four years ago of an arrhythmia, or irregular heartbeat. He had been taking Vioxx for about eight months to ease pain in his hands.

Jay Mayesh, a pharmaceutical defense lawyer and partner at Kaye Scholer in New York, said media coverage may be over blowing the verdict’s impact on the remaining Vioxx lawsuits.

"The newsworthiness of the first verdict tends to overplay its significance in the overall strategy of how to manage a mass tort litigation," said

Merck plans to appeal the verdict, and vowed to continue vigorously defending the remaining cases.

"We believe that the plaintiff did not meet the standard set by Texas law to prove Vioxx caused Mr. Ernst’s death," Jonathan Skidmore, of Fulbright & Jaworski and a member of Merck’s defense team, said in a statement. "There is no reliable scientific evidence that shows Vioxx causes cardiac arrhythmias, which an autopsy showed was the cause of Mr. Ernst’s death, along with coronary atherosclerosis."

Mayesh noted that Angleton – a small town about an hour south of Houston – is considered a "plaintiff-friendly" jurisdiction.

"lt’s only one verdict in what has been perceived to be, and I think truly is, a hostile jurisdiction for pharmaceutical companies," Mayesh said.

But Andy Birchfield, a partner at Beasley Allen in Montgomery, Ala. and co-lead counsel for the plaintiffs’ steering committee for federal multi-district Vioxx litigation, said the verdict is a major victory for Vioxx plaintiffs.

"We have known for quite some time how egregious Merck’s conduct was," Birchfield told Lawyers Weekly USA. "Much of their conduct has been exposed in congressional hearings and through the press, but what Merck was banking on was that plaintiffs could not meet the legal [requirement] of proving their heart attack or stroke was caused by Vioxx."

The Ernst case was considered a challenging one for plaintiffs, because Vioxx has not been linked to heart arrhythmia. During the trial, however, plaintiffs lawyer Mark Lanier introduced testimony from Dr. Maria M. Araneta, the coroner who conducted Ernst’s autopsy. She said she believed that Ernst had actually died of a heart attack, despite her autopsy findings.

"Showing that plaintiffs and victims can prevail on even more challenging cases certainly bodes well for ones where a [blood] clot was found," Birchfield said.

Richard Gabriel, a trial consultant and president of Decision Analysis in Los Angeles, said Merck is probably rethinking its defense strategy in the wake of the 10-2 verdict.

Instead of focusing on the cause of the plaintiffs death or injury, the company needs to illustrate for jurors the decision making that goes into introducing a new drug to the market, he said.

"It is difficult for jurors to sometimes understand the processes in a large, pharmaceutical company," Gabriel said

More than 4,100 lawsuits and 120 class action suits have been filed since Vioxx was pulled from the market last year, based on a study that showed the drug doubled the risk of heart attack or strokes if taken for 18 months or more.

The next Vioxx trial – Humeton v. Merck – is slated for Sept. 12 in New Jersey Superior Court in Atlantic City. Postal worker Michael Humeston claims Vioxx caused his heart attack in 2001.

The first federal trial is scheduled for Nov. 28 in New Orleans. Evelyn Irvin Plunkett claims Vioxx caused the fatal heart attack of her husband, Richard Irvin Jr., 53, who died in 2001 after taking the drug for a month.

Although the Texas verdict of $24.5 million in compensatory damages and $229 million in punitives will be reduced to about $26 million because of a state cap on punitive damages, investor uncertainty has already lowered Merck’s stock price.

The company’s total liability has already been estimated at $18 billion.

Several legal experts said that if the next few verdicts are also in favor of the plaintiff, the threat of increased liability may force Merck to rethink its refusal to enter settlement negotiations.

If Wall Street becomes skittish about the ultimate cost of the litigation, then "the capital markets will be screaming for an end game that provides some certainty, and that’s when the pressure gets put on to dictate a settlement," Mayesh said.

Qzlestions or- con7ine1its can be directed to tlie writer at: nora.tooher@jlav:e~-sweeklj .corn

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