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Merck wins New Jersey jury trial over pain drug Vioxx

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Merck & Co. (NYSE: MRK) won the second lawsuit to come to trial over its Vioxx painkiller, easing concerns that the company would have to settle thousands of cases after it pulled the drug from the market.

Photo: Mike Mergen/Bloomberg News Merck lead attorney Diane Sullivan, right, and attorney Christy Jones, rear, leave the Atlantic County Civil Court building in Atlantic City, N.J., Nov. 3. Merck & Co. won the second lawsuit to come to trial over its Vioxx painkiller, easing concerns that the company would have to settle thousands of cases after it pulled the drug from the market. Jurors in Atlantic City rejected the claim by Frederick Humeston, 60, who said Merck defrauded consumers and failed to warn doctors about Vioxx's risks, and that the drug caused his heart attack.

Jurors in Atlantic City, New Jersey, today rejected the claim by Frederick Humeston, 60, who said Merck defrauded consumers and failed to warn doctors about Vioxx's risks, and that the drug caused his heart attack.

"This is a big victory for Merck because it shows they were able to effectively communicate complicated scientific concepts to a jury,"' said Peter Bicks, an attorney at Orrick Herrington & Sutcliff who has litigated tort cases. "Hopefully, this win will discourage fringe cases where the medical facts are in Merck's favor, as in this case." Merck lost at the first trial and faces 6,400 more suits and carrying billions of dollars in potential liability. A second loss might have created pressure on Merck to settle cases to avoid costly verdicts, analysts said.

At the first trial, in Texas, jurors told Merck to pay $253 million to the widow of a Vioxx user. That amount will drop to $26 million under state law. Merck, the No. 3 U.S. drugmaker, said it will appeal that verdict.

Figuring liability

Timothy Anderson, a senior analyst at Prudential Financial Equity Group Inc., said in a message to clients that quantifying Merck total liability "remains an exercise in futility in our opinion, but we continue to believe that the company's total legal tab will be less than Fen-Phen has been for Wyeth."

"This whole Vioxx issue will take years to play out," Anderson wrote.

The drugmaker Wyeth (NYSE: WYE) lost its first five trials over its fen- phen combination and set aside more than $21 billion to cover possible liability. Merck hasn't set aside any reserves for Vioxx liability. It set aside $675 million for litigation costs.

The company said in a statement it was "satisfied" with the verdict.

"I'm a nobody from Idaho, but I do know you respect the court system first and above all," said Humeston, a postal worker.

"This product is a poison pill," he said. "There are other strong people coming up that have lost loved ones to this product. It's my fervent hope and prayer that they don't let this dissuade them from bringing their cases forward."

Merck lawyer

"I'm just glad we had a jury that paid careful attention and reached the same conclusion we reached," Merck attorney Stephen Raber said.

"This takes the wind right out of the Vioxx plaintiff lawyers' sails," said Michael Kelly, a lawyer with McCarter & English, a Newark, N.J., firm that represents drugmaker such as AstraZeneca Plc. "It sends a signal that these cases will be difficult to prove on the merits, and a lot of plaintiff lawyers will think twice about taking Vioxx cases."

Houston attorney Mark Lanier, who won the Texas case, said he doesn't see his case as an aberration.

"Every plaintiff's case presents unique facts," Lanier said in an interview. "There were questions about exactly how long Mr. Humeston actually took the drug."

In the Texas case, medical records showed Robert Ernst took Vioxx for eight months before he died of a heart ailment that Lanier's experts linked to the drug. Humeston testified in the New Jersey case that he took the drug intermittently for about two months.

Lanier said hopes to try a Vioxx case in state court in New Jersey early in 2006.

Early defense wins "In any mass tort litigation, the defense usually wins the first four or five cases," Lanier said.

"I feel devastated for the Humestons," said attorney Christopher Seeger, who represented Humeston and his wife. "I don't agree with it at all. I don't understand it. But that's the system. We'll just keep coming at Merck until we get it right."

The company withdrew Vioxx last year when a study showed it doubled the risk of heart problems in long-term users. At the eight-week trial that ended with today's verdict, the company said Humeston didn't take the medicine long enough to cause a heart attack.

Humeston first took Vioxx for pain in a knee he injured as a U.S. Marine in Vietnam. He then took it after hurting his other knee on the job. Merck depicted Humeston as an angry, anxious man under mounting stress as he battled his bosses over how much work he could do.

Merck attorney Diane Sullivan suggested to the jury of six women and three men that Humeston may have lied about when he took his last Vioxx pill before the heart attack. He said he took the last two shortly before the attack. Sullivan said that if he had taken the drug as prescribed, he would have run out weeks earlier.

Stress as trigger

She attributed his mild heart attack to his age, weight, gender, cholesterol, blood pressure. The "trigger," she said, was stress.

"People like Mr. Humeston, middle-aged men with some risk factors, especially with a trigger, have heart attacks all the time," Sullivan told jurors in her closing argument. "There was nothing unique or different about the kind of heart attack Mr. Humeston had as compared to people who have heart attacks who never took Vioxx."

She said Merck adequately studied the health risks of Vioxx before its launch in 1999 and disclosed all its data on clinical trials to the U.S. Food and Drug Administration.

Humeston's claims Humeston claimed Merck put profits over patients as it developed the drug, which brought it $2.5 billion in annual sales. Merck cut corners as it tried to develop the first in a class of painkillers that didn't upset the stomach, Humeston's lawyer Seeger said.

He said Merck manipulated data given to the FDA, intimidated researchers and trained sales people to dodge doctors' questions about Vioxx.

"Think about the importance of telling drug companies -- this drug company -- that they can't market their drug the way they did," Seeger urged jurors.

Seeger showed jurors e-mail messages from Merck's former top scientist, Edward Scolnick, who urged colleagues to speed development of Vioxx to "preserve Merck." When Merck was negotiating a label change with the FDA to reflect the Vigor data, Scolnick ridiculed agency employees as "bastards" and "grade D high school students," according to the e-mails.

No longer bulletproof Humeston, who earned two Purple Hearts in Vietnam, told jurors that he no can longer go on the hikes and canoe trips he once led as a wilderness guide.

Humeston said he considered himself "bulletproof" before the heart attack. Since then, he said, "I'm not man enough to drag my own damn bags across the airport."

The heart attack, he said, has caused problems with his wife, Mary, who attended the trial daily.

"The specter of death is not an aphrodisiac to me," he testified. The case is Humeston v. Merck & Co., L-02272-03, Superior Court, New Jersey (Atlantic City).

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