Merck & Co.’s victory in the nation’s second Vioxx trial may lighten the company’s litigation load as plaintiff lawyers shun weaker cases, but the legal saga over the withdrawn painkiller is far from over.
Still, the win is a crucial boost for Merck, which demonstrated a refinement of its defense strategy after a humiliating defeat in a Texas trial over the summer and convinced a jury it acted responsibly in promoting Vioxx, experts said.
After deliberating for less than eight hours over three days, a jury absolved the nation’s No. 5 pharmaceutical company of any role in the nonfatal heart attack suffered by Frederick “Mike” Humeston of Boise, Idaho, in 2001.
Humeston took Vioxx for about two months. His case was considered weak because Humeston had other issues associated with heart attacks, such as stress and high blood pressure, and Merck had pulled the drug off the market last year after a study found it increased cardiovascular risks after 18 months of use.
“Plaintiffs’ lawyers are going to have second thoughts about filing cases where the Vioxx use was short-term,” said Peter Bicks, a New York defense lawyer, who doesn’t work for Merck.
Humeston’s attorney, Chris Seeger, acknowledged that his case may have been weakened because the 60-year-old postal worker took the drug for such a short time – and by the fact that he survived. Death cases generate more emotion with jurors, Seeger said.
Andy Birchfield, co-lead counsel in an upcoming federal Vioxx case along with Seeger, called the short-term use issue a red herring thrown out by Merck. Yet he conceded that some lawyers may be reluctant to take cases in which the plaintiff took the drug for only a short time.
“Some people will shy away from such cases if they don’t know the documents and the science,” Birchfield said.
Juror Nellie Stetzer said Merck’s highlighting of a U.S. Food and Drug Administration report saying that Cox-2 inhibitors, the class of drugs which includes Vioxx, don’t cause heart attacks with short-term use stuck in her mind. She believes Humeston’s health problems triggered his heart attack.
Plaintiff lawyers vowed to keep trying cases. About 7,000 have been filed, although it is unclear how many involve short-term users. Merck has said that most plaintiffs took the drug for less than 18 months.
“We are going to keep fighting them (Merck) with everything we have,” Birchfield said.
Birchfield represents Evelyn Irvin Plunket, the plaintiff in the first federal case, slated to begin next month in Houston. Her husband suffered a fatal heart attack after taking Vioxx for a month.
Birchfield said he isn’t worried about the limited Vioxx use because he said studies do link Vioxx with cardiovascular risks after short-term use. He also believes that numerous e-mails, documents and marketing materials show Merck deliberately hid Vioxx’s risks as they aggressively promoted it to pump up profits.
Such materials resonated with the Texas jury that found the company liable in a Vioxx user’s death and awarded his widow $253 million in damages in August. The award will be cut to about one-tenth of that amount due to the state’s cap on punitive damages, and Merck is appealing the verdict.
New Jersey jurors, however, were not impressed with that evidence.
“I think they were taken out of context,” Vickie Heintz, 40, of Mays Landing, said of the documents.
Heintz’s assessment should please Merck lawyers because if jurors think Merck acted responsibly, they won’t hold the company accountable, even in cases where plaintiffs were long-term users, said Howard Erichson, a professor at Seton Hall Law School. He added that a second loss might have pressured Merck to begin settlement talks.
Still, Erichson said, it is difficult to predict the litigation’s future based on only two cases.
For now, Merck is elated and investors were pleased. Merck stock rose 3.8 percent to $29.48 after the verdict. More than 32 million shares changed hands in barely two hours on the New York Stock Exchange – about four times the stock’s normal daily volume.
“We feel very much vindicated,” Merck general counsel Kenneth Frazier said. “The jury found in our favor, we believe, because the evidence showed that Merck acted responsibly.”
After the battering Merck took in the first trial, it was clear its performance improved in the second case. In Houston, plaintiff’s attorney Mark Lanier chose to make the trial more about marketing than science, and Merck’s lawyers were unable to wrest thematic control from him, observers said.
“I think they were much better prepared this time,” said Seeger, a day before the verdict was announced. “They knew their documents better and their cross-examinations were better.”
On Thursday, Seeger was trying to figure out what went wrong in his case, and he criticized Merck for attacking the credibility of his client by suggesting he was not taking the drug at the time of his heart attack.
“I’m extremely disappointed. I’m devastated for the Humestons. I don’t understand it,” Seeger said. “I don’t know what went on in the jury’s mind.”