Latest Verdict
In Vioxx Suits
Is Merck Victory
By PETER LOFTUS and HEATHER WON TESORIERO
July 14, 2006; Page A9
ATLANTIC CITY, N.J. -- Marking another victory in its war of attrition over Vioxx, Merck & Co. convinced a New Jersey jury that its blockbuster painkiller wasn't responsible for the heart attack of 68-year-old Elaine Doherty.
The verdict breaks the earlier tie of three wins and three losses for Merck in product-liability suits over Vioxx that have gone to trial. The seven-person jury deliberated for more than nine hours over two days before finding that Merck had adequately warned Mrs. Doherty's doctor about the risks of taking the painkiller. The jury did find that Merck failed to give adequate warning to the patient herself, but it said Vioxx didn't contribute substantially to her heart attack. It cleared Merck of all consumer fraud charges and didn't award the patient any damages.
One of Mrs. Doherty's lawyers, Gene Locks, attributed the verdict to "unique medical issues" surrounding her heart attack; Mrs. Doherty was disappointed in the verdict, another one of her lawyers said.
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Jim Fitzpatrick, a lawyer on Merck's defense team, said in a statement, "The company acted responsibly, the science was on our side and the jury agreed." (Separately, Merck replaced the head of its U.S. drug operations.)
"We've shown that in long-term-use cases, we have very strong arguments," Mr. Fitzpatrick said in a phone interview. He was referring to the latest verdict and to a split verdict in April in another Atlantic City trial, in which plaintiff Thomas Cona, who claimed to have taken Vioxx for more than 18 months, wasn't awarded compensatory damages. However, the jury awarded $13.5 million to John McDarby, a second plaintiff in that trial, who also had taken Vioxx for more than 18 months.
Merck withdrew Vioxx from the market in September 2004 after a study linked the drug to an increased risk of heart attack and stroke in patients taking it for 18 months or longer. The New England Journal of Medicine, which published the study in February 2005, recently issued a correction related to the 18-month threshold, contradicting the company's position that there is no increased risk in people taking Vioxx for less than 18 months.
Mrs. Doherty took Vioxx for about two years. The jury voted 5-2 that Vioxx wasn't a substantial contributing factor in her heart attack. Her other risk factors were "too insurmountable," juror Joe Calabrese said after the verdict. "We were all looking for a little more evidence and it just wasn't there," said another juror, Tom Scott.
Some analysts say the verdict is an important milestone for Merck in the Vioxx litigation saga. Anthony Butler, an analyst at Lehman Brothers, said in a note that the victory is "important in our minds because the notion that Merck is closer to potential class action on long term use [has been] diminished."
Merck, based in Whitehouse Station, N.J., faced 11,500 lawsuits over Vioxx as of March 31, according to the company's most-recent tally. The company has focused its defense on the many possible risk factors plaintiffs face, making risk factors a refrain of the litigation. Lawyers for Merck said Mrs. Doherty's high cholesterol, diabetes and high blood pressure caused her heart attack. In closing arguments, Merck lawyer Diane Sullivan said Vioxx wasn't to blame, but the "passage of time."
During a telephone news conference following the verdict, Kenneth C. Frazier, senior vice president and general counsel of Merck, reiterated Merck's intent to "defend these cases on a case-by-case basis." (Read the full text of Merck's statement.)
Plaintiffs' lawyer James Pettit devoted the better part of his opening and closing remarks to Merck's marketing practices. He emphasized Merck's need for Vioxx sales to replace revenue the company was losing to generic competitors for several of its top sellers.
For the first time in a state Vioxx trial, jurors in the Doherty case had to vote not only on whether Merck failed to warn Mrs. Doherty's prescribing physician but also on whether it failed to warn the plaintiff herself. Jurors voted 7-0 that Merck did fail to do so.
Some jurors said they didn't see enough evidence that Mrs. Doherty got precautionary information with her Vioxx prescription. But the vote also could suggest the jury was turned off by Merck's direct-to-consumer marketing, including a TV commercial starring Olympic figure skater Dorothy Hamill, who endorsed the idea of taking Vioxx for arthritis pain relief.
The vote also might signal a wider public view that such drug ads, which have drawn increased scrutiny in recent years, may have reached a tipping point. "There's always a question of whether direct-to-consumer drug ads adequately warn consumers of any of the side effects, disclosed or undisclosed," says Alex Sugerman-Brozan, director of Prescription Access Litigation Project, a Boston nonprofit consumer advocacy group. He adds that he sees Vioxx as a drug "whose market was created almost entirely from TV commercials."
Another Vioxx suit is under way in state court in Los Angeles, and Merck faces nearly a dozen more that are scheduled to begin by year's end. A second federal suit is set to begin at the end of the month; Merck won the first federal trial earlier this year. |
