Merck Weighing Options After Legal Setbacks in Vioxx Cases

Reacting to a couple of legal setbacks related to its embattled arthritis medication, Vioxx, U.S. drug manufacturer Merck & Co. said it is weighing legal options in regards to separate rulings in New Jersey and Louisiana in cases involving Vioxx.

On Aug. 17 a federal jury in New Orleans found that Merck should pay $51 million to a heart attack victim who had taken Vioxx. Also on Aug. 17 a state judge in New Jersey set aside a November verdict favoring Merck and ordered a new trial.

In a company announcement, Merck said it disagreed with the New Orleans jury’s verdict and will appeal the decision in the second federal Vioxx case to go trial, Barnett v. Merck. Merck said it also disagrees with a New Jersey state judge’s decision setting aside a November 2005 jury verdict in Humeston v. Merck, and is weighing its legal options in that case.

Responding to the New Orleans jury’s decision in Barnett v. Merck, Phil Beck of Bartlit Beck, Merck’s lead trial lawyer in the case, stated, “We disagree with the jury’s verdict. The plaintiff was at increased risk for a heart attack regardless of whether he was taking Vioxx.”

According to the evidence presented at trial, Gerald Barnett of South Carolina took Vioxx for 33 months before his heart attack at 58 and for an additional two years after the event.

During the trial, Merck produced evidence showing that Barnett had high cholesterol, a family history of cardiac problems, and documented cardiovascular disease before he ever took Vioxx.

In addition, Merck said it presented evidence that it carefully studied Vioxx before and after receiving approval from the U.S. Food and Drug Administration (FDA), and consistently made the results of studies available to the FDA and the medical community.

Merck is exploring several grounds for appeal, including insufficient evidence and the application of incorrect legal standards.

In Humeston v. Merck, the jury in November 2005 rejected a claim by an Idaho resident that Vioxx caused his heart attack. The New Jersey judge ordered a new trial early next year on the basis of post-trial evidence in the form of a New England Journal of Medicine editorial.

“We have a significant disagreement with the court’s decision because the evidence presented to the jury during the course of a seven-week trial in 2005 showed that Merck behaved appropriately with respect to Vioxx and also that Vioxx was in no way related to Mr. Humeston’s heart attack,” said Ted Mayer of Hughes Hubbard & Reed, a member of Merck’s national defense team. “We have also previously said we disagree with the New England Journal of Medicine‘s Expression of Concern. More importantly to the Humeston case, the facts underlying the Expression of Concern were known to the plaintiff long before the trial, and the jury was aware of the issue because it was presented by the plaintiff’s expert. The jury did not find the testimony persuasive in the original trial and we do not believe that the Expression of Concern would have in any way affected the outcome.”

The plaintiff in the case is Frederick Humeston, a U.S. Postal Service employee, from Boise, Idaho, who alleged that he suffered a heart attack on Sept. 18, 2001, at the age of 56, as a result of intermittent use of Vioxx over a two-month period. Humeston was hospitalized for two days following his heart attack, returned to work approximately two weeks later, and, according to his wife’s testimony, was not placed under any restrictions by his doctors.

The company said the verdict in Barnett v. Merck comes less than a month after a California jury found that Vioxx was not the cause of a heart attack suffered by a man who alleged that his intermittent use of Vioxx caused his heart attack.

Barnett v. Merck is the ninth Vioxx case that has gone to trial.