August 18, 2006
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August 18, 2006 | |||
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Merck Is Dealt Twin Blows on Vioxx Jury
Awards One Plaintiff
$51 Million as Verdict In New Jersey Is Tossed Out By HEATHER
WON TESORIERO
August 18, 2006; Page A2 A surprising double whammy sapped Merck & Co.'s momentum in the Vioxx litigation, leaving the drug maker and plaintiffs' attorneys once again tied in the verdict tally. While it is still early in the litigation and many more cases are likely to go to trial before either side broaches the possibility of settlement, Merck's loss in federal court yesterday and a reversal of an earlier Merck state-court win energized plaintiffs' attorneys who had been on a losing streak. CONFERENCE CALL
![[conference]](Merck Loses Two Vioxx Cases WSJ081806_files/it_conference-call09142004171604.gif){kind=small} • Read a
transcript of Merck's conference
call1 and see a scorecard
of judgments in the Vioxx trial.A federal jury in New Orleans awarded $51 million to a former federal agent who suffered a heart attack while on Vioxx. Separately, a New Jersey judge tossed out a verdict in Merck's favor from a trial there in the fall. Together the decisions represent a major setback for the pharmaceutical company, which had won the last three trials, and five out of eight overall, before yesterday's verdict. Many observers had expected Merck to win the federal trial, which was a test of central arguments for both sides. It was the first time a jury found in favor of plaintiff who was relatively healthy at the time of the trial, and the plaintiffs won without presenting what they consider to be some of their strongest evidence. The New Jersey ruling shows that Merck is still suffering the consequences of a flap in December over how it reported data on a Vioxx study in the New England Journal of Medicine. Nearing the one-year anniversary of the first Vioxx trial, in which a Texas state jury awarded $253.4 million to a woman whose husband died after taking the painkiller, Merck and the plaintiffs now can each claim four victories. "A few days ago, Merck was five and three and people were saying Merck should feel pretty good about its position in the litigation," said Howard Erichson, a professor at Seton Hall Law School. "Now with this one-two punch, it looks like Merck is on the defensive." ![[vioxx]](Merck Loses Two Vioxx Cases WSJ081806_files/NA-AK025_VIOXX_20060817192417.gif)
Merck, Whitehouse Station, N.J., said it will appeal the latest federal verdict. "We disagree with the jury's verdict. The plaintiff was at increased risk for a heart attack regardless of whether he was taking Vioxx," said Phil Beck of Bartlit Beck Herman Palenchar & Scott LLP, Merck's lead trial lawyer in the case. (Read Merck's statement2.) Each verdict is critical at this stage because in mass-tort litigation the early cases are typically used to set the parameters for eventual settlement negotiations. The $51 million damages award -- the second-largest yet after the Texas trial -- as well as a retrial of the New Jersey case, are the kinds of events that tend to raise the price tag on settlement values, Mr. Erichson said. Merck's shares were down $2.35, or 5.7%, as of 4 p.m. in New York Stock Exchange composite trading. Some analysts cautioned against getting carried too far in either direction. "I personally still think it's going to be a marathon," said Barbara Ryan, a drug industry analyst with Deutsche Bank AG. "Merck had a string of wins and now they've had two disappointing decisions in one day." Ms. Ryan places the total liability at $25 billion. In yesterday's New Orleans verdict, the federal jury, comprised of eight men, deliberated for about four hours before awarding $50 million in compensatory damages to Gerald Barnett, 62, a retired agent with the Federal Bureau of Investigation, who had taken the painkiller for 33 months. The jury awarded Mr. Barnett an additional $1 million after attorneys for both sides presented brief arguments in a punitive damages trial. "I think most people were anticipating a Merck win here," said Peter Bicks, a defense attorney with Orrick, Herrington & Sutcliffe LLP, who isn't involved with the litigation. "The result underscores the unpredictability of jury trials." In finding for Mr. Barnett, the jury voted Merck was negligent in failing to adequately warn Mr. Barnett's treating physician of Vioxx's risks and that the drug was a cause of the plaintiff's heart attack. The jury also found Merck had knowingly failed to disclose information about the drug's risks. DESKTOP NEWS ALERTS
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a sample and get more information.4 Merck had argued Mr. Barnett had a number of risk factors for a heart attack, including gender, age, family history of heart disease, high cholesterol and documented cardiovascular disease. Mr. Beck told jurors that Mr. Barnett suffered a "mild" heart attack and continued to lead an active life. "The case against Vioxx causing heart attacks is strong and stronger," said plaintiffs' attorney Andy Birchfield, who co-tried the case with Mark Robinson. "The scientific community is coming to see that and we're becoming more effective in presenting that evidence." Both sides have been wrangling over which of the 14,200 cases facing Merck to try first. Christopher Seeger, a key figure in the coordination of plaintiffs attorneys' efforts on Vioxx, had said before the verdict in New Orleans that the Barnett case was the first true plaintiffs' pick. In a conference call, Merck's lawyers said they would make a posttrial motion to have the New Orleans judgment set aside or reduced. If that motion is unsuccessful, Merck will appeal the verdict, citing what its lawyers said were "legal errors" committed during the trial. In New Jersey, Superior Court Judge Carol E. Higbee vacated Merck's verdict from a trial in November, when an Atlantic City jury found that the company wasn't liable for a heart attack suffered by Frederick "Mike" Humeston, who had taken Vioxx for only a few weeks. The judge cited a so-called Expression of Concern the New England Journal of Medicine issued in December regarding a study known as Vigor that was published in 2001. The journal's statement said the study didn't include data on three additional heart attacks that occurred among patients taking Vioxx and it triggered a debate over whether the company's decision not to include the data made the drug appear safer than it was. There are as many as eight trials scheduled in both state and federal court through the end of the year. Trial Score BoxNine of the 14,200 Vioxx-related lawsuits against Merck have been decided. Following are the verdicts to date.
*Ruling overturned Aug. 17; judge orders retrial. ** These cases, brought by different plaintiffs, were tried together but had different outcomes. ---- John Carreyrou contributed to this article. Write to Heather Won Tesoriero at heather.tesoriero@wsj.com25 | |||||||||||||||||||||||||||||||||||||||||||||||||||||
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