LOS ANGELES – The jury in the case pitting Merck & Co.(MRK) against an elderly man who said he had a heart attack because he took the drug maker’s painkiller Vioxx reconvened Wednesday for its first day of deliberations.

The jury elected a foreman as the first order of business following closing arguments Tuesday, a spokeswoman for Superior Court in Los Angeles said.

The jury, eight men and four women, are to decide whether Merck is liable for the heart attack of Stewart Grossberg, a 71-year-old retired construction manager who began taking Vioxx in 1999 for about two years.

Plaintiffs’ lawyer, Thomas Girardi of Los Angeles-based Girardi & Keese, devoted his closing remarks to arguing that Merck knew Vioxx was dangerous and that the company marketed the drug to the public anyway. He also told the jury that Vioxx was unsafe at any dose and that it was a contributing factor to Grossberg’s heart attack.

“There is no question according to their own documents, that Vioxx causes heart attack and stroke,” Girardi said in his closing statements.

Girardi sought to convince jurors that the case could be used as an example against other drug companies if they returned a verdict favoring his client.

“What if one company out there based upon what you do says, ‘We’d like to think this through. We don’t want to hurt anyone,” Girardi said in his closing statements.

Merck focused its defense on what has become a refrain in the litigation: risk factors. Lawyers for Merck argued that Grossberg’s previous artery blockage as the cause of his heart attack.

“From the beginning of time, arteries that clogged have caused heart attacks,” said Merck lawyer Tarek Ismail. “Literally millions of Americans have heart attacks in exactly the same way as Mr. Grossberg.”

Merck withdrew Vioxx from the market in September 2004 after a study known as Approve linked the drug to an increased risk of heart attacks and strokes in patients taking the drug for 18 months or longer. The New England Journal of Medicine, which published the Approve study in February 2005, recently issued a correction over the 18-month threshold, contradicting the company’s position that the drug doesn’t increase risk of heart attacks and strokes in people who took it for less than 18 months.

The Whitehouse Station, N.J., drug maker, which faces some 14,200 lawsuits over Vioxx, focused its defense on what has become a refrain in the litigation: risk factors. Lawyers for Merck argued that Grossberg’s previous artery blockage as the cause of his heart attack.



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