Tuesday, April 04, 2006

Health News Article | Reuters.co.uk

Yesterday I attended the closngs in the Cona and Mcdarby VIOXX cases before Judge Higbee. Mark Lanier , Ben Morelli and Rob Gordon did a great job. The case keeps getting better from the liability perspective. Mark Lanier's analogy to the TV show Desperate HouseWives was vintage Lanier and perhaps one of the most entertaining closings I have ever witnessed . Needless to say, the jurors and everyone else in the packed Courtroom was paying attention. While you can never predict the outcome of the trial, it is clear that both sides were well prepared and the trial was hard fought.

The following are some news accounts.

Jury hears closing arguments in Vioxx trial
Mon Apr 3, 2006 9:31 PM BST
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By Jon Hurdle
ATLANTIC CITY (Reuters) - Merck & Co.'s attorney told jurors on Monday that pre-existing health problems and not Vioxx caused the heart attacks of two men suing the drugmaker, while a lawyer for one of the plaintiffs said the company deliberately hid the drug's heart risks.
The jury is expected to begin deliberations on Tuesday following Monday's closing arguments in the latest product liability suit over Merck's withdrawn pain drug.
Merck attorney Christy Jones said both plaintiffs had serious coronary blockages that had been building up for years, and that they were responsible for the attacks.
"Both of these men had serious, severe coronary artery disease," Jones told the court. "That's what caused the plaintiffs' heart attacks."
But Mark Lanier, representing one of the plaintiffs, hammered home his assertion that Merck failed to warn Vioxx users of the danger they faced because the company put profits before safety.
Lanier, the only attorney to win a Vioxx case against Merck so far, argued that Merck had become consumed by the need to make money and its corporate culture had changed in 1994 from a science focus to a commercial focus.
"Instead of hiring a top doctor or a scientist, they hired Ray Gilmartin, a businessman," Lanier said of Merck's former chief executive. "He took the company in a different direction; no longer was it science and medicine, it became strictly money. It was sales at all costs."
Lanier presented his 70-minute closing statement to the jury in the form of a TV series he called "Desperate Executives," a play on the popular series "Desperate Housewives." Lanier's fictional series consisted of four episodes: "Shoot for the Moon"; "Trouble in Paradise"; "The Cover Up"; and "Game Over."
The story, Lanier said, began with the desire to make money from Vioxx, progressed through a series of evasions and denials that the drug caused heart attacks, and ended with Vioxx being criticized by a number of scientific reports.
In her closing, Jones rejected arguments by the plaintiffs' attorneys that Merck had ignored the heart risks of Vioxx.
She said the company's top scientists, such as Dr. Briggs Morrison and Dr. Alise Reicin, both of whom testified during the trial, had gone to work for Merck because they wanted to find cures for serious diseases.
Jurors were being asked by plaintiffs' attorneys to accept that, in developing Vioxx, people like Morrison and Reicin had suddenly become dominated by a desire to make money, Jones said.
"It's not just that they put profits before safety. It's that at the time they joined Merck they suddenly didn't care any more," Jones asked jurors.
The plaintiffs are Thomas Cona, 60, of Cherry Hill, New Jersey, and John McDarby, 77, of Park Ridge, New Jersey, both long-term Vioxx users who blame the drug for their heart attacks.
Merck voluntarily pulled the $2.5 billion a year pain drug from the market in September 2004 after a study showed it doubled the risk of heart attack and stroke among people who used it for at least 18 months.
In a speech lasting two and a half hours, Jones attacked Cona's credibility, reminding jurors that he had been on the golf course shortly after his 2003 heart attack.
"He says he has limitations, that he can't walk the dog and can't walk on the golf course," Jones said. "But no doctor has limited his activities. In fact, he was playing golf within two weeks of his heart attack."
Addressing the plaintiffs' claim that Merck cared more about profit than product safety, Jones said the company continued to test the drug long after it was approved in 1999 and was no longer required to.
She argued that Merck had issued a warning in April 2002 saying Vioxx presented risks for patients with a history of ischemic heart disease, but that McDarby continued to take it for two years until his heart attack in April 2004.
McDarby's health problems included diabetes, high blood pressure, high cholesterol and the advanced age of 75 at the time of his heart attack.
"He was going to have a heart attack eventually, it was just a matter of time," Jones said.

ATLANTIC CITY, N.J. -- A jury hearing the case of two men who attribute their heart attacks to the painkiller Vioxx heard starkly different summaries of the evidence Monday, with a Merck & Co. lawyer defending its handling of the drug and a plaintiff's attorney ripping the company as desperate and dishonest.
Merck's representative, Christy Jones, said pre-existing conditions caused the men to be stricken and said Merck was above board in testing the drug, publicizing the results and responding appropriately when its problems surfaced.
"The fact is that each of these men was on a downhill slope," attorney Christy Jones told jurors during closing arguments. "They weren't blissfully walking along on some cliff, happy go lucky, with nothing to worry about, and then took Vioxx and fell off.
"They had the risk factors," said Jones, stressing a central theme to Merck's defense of the lawsuit brought by Thomas Cona and John McDarby.
But Cona lawyer Mark Lanier painted a different picture, tracing the laboratory-to-drug-store history of the arthritis drug, which Merck pulled off the market in 2004 because of links to heart attacks and strokes.
In a fiery, 75-minute monologue accompanied by a slide show, Lanier seized on Jones' statement from the start of the trial to jurors that they would be like detectives on the TV show "CSI," saying the show "Desperate Housewives" offered a more fitting comparison.
Calling the story of the Vioxx franchise "Desperate Executives," he showed a "Desperate Housewives" graphic before substituting the heads of Merck executives in place of those of the series' actresses, telling jurors Merck saw Vioxx as a potential sales dynamo that would help replace revenue lost when Pepcid and other Merck drugs came off patent.
He divided the video presentation into episodes, breaking up the narrative with "commercial breaks," showing Vioxx television ads that made no mention of the drug's heart attack risks. That was typical of Merck's marketing of the drug, which concealed or misrepresented Vioxx's safety, Lanier said.
"On a life-or-death drug, the marketing should be as transparent as glass," Lanier said. "But it was as murky as seawater."
In his closing, McDarby lawyer Robert Gordon acknowledged that the retired insurance agent was at risk for heart attack because of his diabetes, age, gender and low "good cholesterol," but said those reasons were why he shouldn't have been on Vioxx in the first place.
He was on it because Merck knew Vioxx was a risk for such users but didn't disclose it, said Gordon, who used the metaphor of five playing cards _ a 10, a jack, a queen, a king and an ace _ to represent McDarby's risk factors, with Vioxx as the ace.
"Which one's responsible for the straight?" he asked, showing jurors blowups of the playing cards. "They all are."
Merck, which faces about 9,650 lawsuits over the drug, has won two trials and lost one. But some see the cases of Cona and McDarby as a bellwether for future Vioxx litigation, since both claim to have taken the drug for more than 18 months, the point at which Merck has acknowledged that risk of heart attack and stroke increases.
Cona, 60, of Cherry Hill, says he took it for three years before being stricken on a golf course in 2003. McDarby, a 77-year-old diabetic, took it for four years before he collapsed in the living room of his Park Ridge, N.J., home, suffering a broken hip as he fell.
Both men had clogged arteries that were more likely causes of the heart attacks, Jones said during a 2 1/2-hour closing in which she reminded jurors Cona's prescription records could not account for all the Vioxx he said he had taken. His lawyers say he used free samples given by his doctors for most of the time he was on the drug.
Jones also emphasized Cona's testimony that he was prescribed Lipitor for high cholesterol in 2001 but only filled the prescription once, and that he was playing golf again within two weeks of his heart attack.
Whitehouse Station, N.J.-based Merck enjoyed runaway success with Vioxx after introducing it in 1999, but voluntarily recalled it in September 2004 after a study showed it doubled the risk of cardiovascular events after 18 months' use.
Merck tested the drug more than it was required to and the U.S. Food and Drug Administration said four times _ the last time in August 2004 _ that it was safe and effective, Jones told the six-woman, two-man panel.
"It's easy with Monday-morning quarterbacking to look back with hindsight and say you should have done this and you should have done that. That's exactly what the plaintiffs are doing in this case," she said


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