Bloomberg.com: U.S.
Bloomberg.com: U.S.
Merck Vioxx Verdict Depends on Closing Arguments, Lawyers Say
Oct. 31 (Bloomberg) -- Merck & Co.'s defense of a lawsuit claiming its Vioxx painkiller caused an Idaho postal worker's heart attack produced a close contest that will turn on today's final arguments, said lawyers following the case.
Jurors in Atlantic City, New Jersey, will hear summations by attorneys for Merck and plaintiff Frederick Humeston, 60. This second Vioxx trial is more of a toss-up than the first one in Texas, where jurors awarded $253 million in August to Carol Ernst, the widow of a Vioxx user, courtroom observers said. That award will be reduced to $26 million under Texas law.
``The summations are critical because the science in this case is somewhat hazy,'' said attorney Samuel Davis of Davis, Saperstein & Salomon, who attended daily and filed 94 Vioxx suits against Merck. ``The winning side is going to be the one that can simplify what has been a rather complex and detailed explanation of what caused Mr. Humeston's heart attack.''
Stakes are high for Merck, the No. 3 U.S. drugmaker, which wants to avoid early defeats in defending 6,400 Vioxx suits that carry billions of dollars in potential liability. Investors fear that early Merck losses could force large settlements. Wyeth, which lost the first five trials over its fen-phen combination, set aside $21 billion to resolve thousands of other claims.
Merck denies Humeston's claims that it hid the health risks of Vioxx before launching the drug in May 1999. Merck withdrew Vioxx last year, saying it doubled the risk of heart attacks in long-term users. It has set aside $675 million for litigation expenses and none for liability.
Purple Heart
Humeston, a former U.S. Marine who won two Purple Hearts in Vietnam, claims Merck failed to act on warnings from outside scientists as early as 1997 that Vioxx posed heart risks. His lawyers say Merck's marketers put profits before patient safety in turning Vioxx into a drug with $2.5 billion in annual sales.
Merck says Humeston's heart attack was caused by his age, weight, blood pressure, cholesterol, and job-related stress. Merck claims dozens of studies proved the safety of Vioxx, and that the U.S. Food and Drug Administration concurred.
Jurors heard testimony by Merck scientists who were forced to explain e-mails in which they fretted over study results unfavorable to Vioxx or that belittled the FDA.
Expert witnesses who testified for Humeston said studies show Vioxx causes heart attacks after a single dose and that his health was good. Merck experts said Vioxx poses no short-term hazard and that Humeston, who took 56 Vioxx pills for knee pain, was at risk of a heart attack for several reasons. The two sides differed over whether Merck tested Vioxx correctly or was forthcoming with the Food and Drug Administration.
2000 Study
Both sides battled over Merck's explanation of a 2000 study showing Vioxx caused five times more heart attacks than another painkiller, naproxen. Merck's experts said the study showed naproxen protected the heart, not that Vioxx damaged it.
Humeston's experts said Merck has no proof of that thesis and point to an FDA warning to Merck to back off such claims.
``Going into this trial, it looked like a case for the plaintiff to lose,'' said Kevin Thornton, a lawyer at Fox Rothschild LLP who attended daily since the trial began Sept. 14. ``Now, as we have concluded, it appears that Merck has made a race of it, and it's almost too close to call.''
Humeston's attorney, Christopher Seeger, and Merck lawyer Diane Sullivan are expected to give the summations. The six women and three men of the jury include a county prosecutor who once was an insurance defense lawyer; the wife of a retired surgeon; a bookkeeper; a teacher; a bank manager; and an accountant.
Closing Arguments Key
``Seeger needs to give the closing of his life,'' said attorney Mark Lanier, who won the Ernst case. ``I would have tried it differently. I would have made marketing the center issue of the case, and Chris chose to make causation the center issue. By closing arguments, our case was over. This case can go either way.''
Under an agreement by both sides, seven of nine jurors must agree on Humeston's claim that Merck violated New Jersey's Consumer Fraud Act and Products Liability Act. If jurors find Merck liable under the Products Liability Act, the panel will then consider punitive damages in a second phase of the trial.
Lanier said the lawyers must use their closing arguments to sway jurors who may be favoring one side or another. Merck needs only three jurors to win the case, Lanier said.
``The lawyers have to try to give the jurors on their side the ammunition to sway the other jurors during deliberations,'' Lanier said. ``That's the key.''
Preponderance of Evidence
Thornton, a commercial litigator who wouldn't disclose what client he represents, said: ``Given the composition of the jury and the good job done by Merck's defense team and expert witnesses, it's not a stretch to think that three jurors could reasonably conclude that the plaintiffs have not proven their case by the required preponderance of evidence.''
As in the Texas case, the Humeston jurors heard testimony about Merck's unsuccessful drive to market the first painkiller to protect the stomach by inhibiting the Cox-2 enzyme.
Merck used thousands of sales representatives to tout Vioxx to doctors. That sales force practiced answering doctor's questions in a game called ``Dodgeball,'' jurors learned.
A Merck president, David Anstice, said Merck employees weren't taught to dodge questions, and he was embarrassed by the game's name. He distanced himself from company documents suggesting Merck sought to ``neutralize'' doctors or intimidate researchers who questioned the safety of Vioxx.
The case is Humeston v. Merck & Co., L-02272-03, Superior Court, Atlantic City, New Jersey.
To contact the reporter on this story:
David Voreacos in Atlantic City, New Jersey, at dvoreacos@bloomberg.net.
Last Updated: October 31, 2005 00:13 EST
Merck Vioxx Verdict Depends on Closing Arguments, Lawyers Say
Oct. 31 (Bloomberg) -- Merck & Co.'s defense of a lawsuit claiming its Vioxx painkiller caused an Idaho postal worker's heart attack produced a close contest that will turn on today's final arguments, said lawyers following the case.
Jurors in Atlantic City, New Jersey, will hear summations by attorneys for Merck and plaintiff Frederick Humeston, 60. This second Vioxx trial is more of a toss-up than the first one in Texas, where jurors awarded $253 million in August to Carol Ernst, the widow of a Vioxx user, courtroom observers said. That award will be reduced to $26 million under Texas law.
``The summations are critical because the science in this case is somewhat hazy,'' said attorney Samuel Davis of Davis, Saperstein & Salomon, who attended daily and filed 94 Vioxx suits against Merck. ``The winning side is going to be the one that can simplify what has been a rather complex and detailed explanation of what caused Mr. Humeston's heart attack.''
Stakes are high for Merck, the No. 3 U.S. drugmaker, which wants to avoid early defeats in defending 6,400 Vioxx suits that carry billions of dollars in potential liability. Investors fear that early Merck losses could force large settlements. Wyeth, which lost the first five trials over its fen-phen combination, set aside $21 billion to resolve thousands of other claims.
Merck denies Humeston's claims that it hid the health risks of Vioxx before launching the drug in May 1999. Merck withdrew Vioxx last year, saying it doubled the risk of heart attacks in long-term users. It has set aside $675 million for litigation expenses and none for liability.
Purple Heart
Humeston, a former U.S. Marine who won two Purple Hearts in Vietnam, claims Merck failed to act on warnings from outside scientists as early as 1997 that Vioxx posed heart risks. His lawyers say Merck's marketers put profits before patient safety in turning Vioxx into a drug with $2.5 billion in annual sales.
Merck says Humeston's heart attack was caused by his age, weight, blood pressure, cholesterol, and job-related stress. Merck claims dozens of studies proved the safety of Vioxx, and that the U.S. Food and Drug Administration concurred.
Jurors heard testimony by Merck scientists who were forced to explain e-mails in which they fretted over study results unfavorable to Vioxx or that belittled the FDA.
Expert witnesses who testified for Humeston said studies show Vioxx causes heart attacks after a single dose and that his health was good. Merck experts said Vioxx poses no short-term hazard and that Humeston, who took 56 Vioxx pills for knee pain, was at risk of a heart attack for several reasons. The two sides differed over whether Merck tested Vioxx correctly or was forthcoming with the Food and Drug Administration.
2000 Study
Both sides battled over Merck's explanation of a 2000 study showing Vioxx caused five times more heart attacks than another painkiller, naproxen. Merck's experts said the study showed naproxen protected the heart, not that Vioxx damaged it.
Humeston's experts said Merck has no proof of that thesis and point to an FDA warning to Merck to back off such claims.
``Going into this trial, it looked like a case for the plaintiff to lose,'' said Kevin Thornton, a lawyer at Fox Rothschild LLP who attended daily since the trial began Sept. 14. ``Now, as we have concluded, it appears that Merck has made a race of it, and it's almost too close to call.''
Humeston's attorney, Christopher Seeger, and Merck lawyer Diane Sullivan are expected to give the summations. The six women and three men of the jury include a county prosecutor who once was an insurance defense lawyer; the wife of a retired surgeon; a bookkeeper; a teacher; a bank manager; and an accountant.
Closing Arguments Key
``Seeger needs to give the closing of his life,'' said attorney Mark Lanier, who won the Ernst case. ``I would have tried it differently. I would have made marketing the center issue of the case, and Chris chose to make causation the center issue. By closing arguments, our case was over. This case can go either way.''
Under an agreement by both sides, seven of nine jurors must agree on Humeston's claim that Merck violated New Jersey's Consumer Fraud Act and Products Liability Act. If jurors find Merck liable under the Products Liability Act, the panel will then consider punitive damages in a second phase of the trial.
Lanier said the lawyers must use their closing arguments to sway jurors who may be favoring one side or another. Merck needs only three jurors to win the case, Lanier said.
``The lawyers have to try to give the jurors on their side the ammunition to sway the other jurors during deliberations,'' Lanier said. ``That's the key.''
Preponderance of Evidence
Thornton, a commercial litigator who wouldn't disclose what client he represents, said: ``Given the composition of the jury and the good job done by Merck's defense team and expert witnesses, it's not a stretch to think that three jurors could reasonably conclude that the plaintiffs have not proven their case by the required preponderance of evidence.''
As in the Texas case, the Humeston jurors heard testimony about Merck's unsuccessful drive to market the first painkiller to protect the stomach by inhibiting the Cox-2 enzyme.
Merck used thousands of sales representatives to tout Vioxx to doctors. That sales force practiced answering doctor's questions in a game called ``Dodgeball,'' jurors learned.
A Merck president, David Anstice, said Merck employees weren't taught to dodge questions, and he was embarrassed by the game's name. He distanced himself from company documents suggesting Merck sought to ``neutralize'' doctors or intimidate researchers who questioned the safety of Vioxx.
The case is Humeston v. Merck & Co., L-02272-03, Superior Court, Atlantic City, New Jersey.
To contact the reporter on this story:
David Voreacos in Atlantic City, New Jersey, at dvoreacos@bloomberg.net.
Last Updated: October 31, 2005 00:13 EST
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