Vioxx Cases face Tougher Litmus Test

posted on:
November 27, 2005

author:
Staff

 After state court trials in Texas and New Jersey, the first Vioxx lawsuit in federal court goes to trial in Houston this week, but the issue remains essentially the same—whether short-term use of the once-popular pain reliever causes heart attacks. 

The widow of Richard “Dicky” Irvin Jr. claims her husband was in “very good health” until he took Vioxx for about a month to alleviate severe back pain. The 53-year-old Florida man suffered a fatal heart attack in May 2001.

Merck, which faces thousands of additional lawsuits in state and federal jurisdictions, argues in court papers that clogged arteries, not Vioxx, caused Irvin’s death. Irvin rarely visited a doctor and his son-in-law, a physician, wrote Irvin a prescription for 30 Vioxx tablets without examining him, court records show.

“We’re smart enough and realistic enough to know we have a fight on our hands,” Jere Beasley, lead lawyer for the plaintiff and a former lieutenant governor of Alabama, said in an interview. “They’re Goliath. They’re serious. But we’re going to try the same case whether we’re an underdog or not.”

Jury selection begins tomorrow, and opening arguments could come on Wednesday. The trial is expected to last about three weeks.

Ray Aragon, a Washington, D.C.-based lawyer who represents drugmakers against product-liability claims, said the federal trial will be an important test of Merck’s defense in short-term-use cases.

“It is going to provide more information about how juries will react in short-term-exposure cases,” he said. “The cases that have been tried so far have had enormously different results.”

Last month, a state court jury in Atlantic City handed Merck a victory, ruling the Whitehouse Station-based drugmaker provided adequate warnings about the risks of Vioxx in a case filed by an Idaho man who suffered a nonfatal heart attack after taking the pain reliever for a few months.

In August, Merck lost the very first Vioxx case, when a jury in Angleton, Texas, slapped the company with a $253.4 million verdict. The plaintiff, who suffered a fatal heart ailment, took the drug for seven months. The state’s cap on punitive damages will reduce the verdict to about $26 million.

As in the New Jersey case, the jury in the federal trial must first decide if Merck notified doctors of Vioxx risks it knew or should have known about. Then it will move to the question of whether Irvin’s heart attack was triggered by Vioxx.

If the jury decides in favor of the plaintiff, it would first determine compensatory damages Merck would have to pay, and then, after a separate hearing, possibly impose punitive damages.

Estimates of the drugmaker’s total Vioxx liability range from several billion to tens of billions of dollars.

One reason the federal trial is being closely watched, legal experts say, is because strict rules of evidence in federal court might dramatically affect the witness lists and exhibits offered by both the plaintiff and defense.

But Judge Eldon Fallon of New Orleans, who is overseeing the federal Vioxx litigation, ruled last week that virtually all of the medical studies, e-mails, researchers and executives introduced in the earlier trials may be heard by the jury in Houston, where the case was moved after Hurricane Katrina.

U.S. District Judge Eldon Fallon ruled Nov. 16 that plaintiff lawyers in the Houston trial may present evidence that brief Vioxx use can trigger heart attacks and strokes, rejecting Merck’s motion to throw out the case for insufficient evidence.

Still, important differences remain between the federal venue and state courts. Chief among them: Federal juries must render a unanimous verdict, and there is no so-called “home team advantage,” because in the Houston case, the judge, plaintiff, defendant and lawyers are all from out of state.

What is more, federal judges, who have lifetime appointments to the bench, are notorious for their assertiveness in ruling out evidence, cutting off testimony and making comments that can enhance or undercut witnesses in the eyes of the jury.

Fallon has the reputation as a hard worker, lawyers familiar with him say. He routinely starts court at 8:30 a.m. and continues to hear testimony until early evening—and, if necessary, on Saturdays.

“Federal courts in high-profile product liability with an out-of- state defendant are more likely to be fair,” said Victor Schwartz, a Washington, D.C., lawyer and general counsel of the Tort Reform Association, which lobbies for restrictions on product-liability lawsuits.

“Federal judges are not running for office. They are not running on plaintiff lawyer (campaign) money,” he said. “It’s an even playing field.”

Merck’s legal team in Houston will be led by Phil Beck, who represented President Bush in the Florida “hanging chad” case during the disputed 2000 presidential election. Beck and Kent Jarrell, Merck’s spokesman in the Vioxx cases, declined to comment, citing a court order against pretrial comments.

Beasley, interviewed by The Star-Ledger last month before the gag order took effect, said he was undaunted by Merck’s victory in Atlantic City. He said the jury would be moved by Irving’s fatal heart attack.

“In New Jersey, you had a very mild heart attack and you had the credibility of the plaintiff,” Beasley said. “He was still alive.”

Vioxx was a huge seller for Merck—generating $2.5 billion in sales annually—before the company pulled it from the market last year because of mounting safety concerns.

Merck has been named in more than 6,500 product-liability lawsuits filed in state and federal courts around the country; more than half are pending in Atlantic County. Merck officials have vowed to fight each case.

As many as 60 percent of the lawsuits Merck faces over Vioxx may involve long-term exposure. As a result, a turning point in the litigation could come in January, when state Superior Court Judge Carol Higbee, who is overseeing all the Vioxx cases in New Jersey, presides over a case involving at least 18 months of use.

She has said she wants the next 12 trials in New Jersey to focus on heart-attack victims who took Vioxx for 18 months or more.

The long-term cases would require Merck to alter its defense, because its own studies show Vioxx can cause heart attacks and strokes after 18 months use.

“So far, Merck has held the line, but they’re still to see the toughest cases,” said Carl Tobias, a University of Richmond Law School professor who has closely followed the Vioxx cases. “The first long-term exposure cases are going to be a huge deal for Merck.”

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