Healthy Skepticism Library item: 5487

Warning: This library includes all items relevant to health product marketing that we are aware of regardless of quality. Often we do not agree with all or part of the contents.

Publication type: news

Johnson L.
Jurors Rule for Merck in N.J. Vioxx Case
Associated Press 2006 Jul 14
http://biz.yahoo.com/ap/060714/vioxx_trial.html?.v=3

Notes:

Ralph Faggotter’s Coments:

As the Vioxx cases are progressively heard and determined, one by one, a picture is gradually emerging of what juries consider to be reasonable or unreasonable cases.

Having extensive known pre-existing heart disease, as one might expect, is now officially a clear disadvantage for plaintiffs.

Full text: AP Jurors Rule for Merck in N.J. Vioxx Case Friday July 14, 12:43 am ET By Linda A. Johnson, AP Business Writer Jurors in N.J. Vioxx Case Decide That Painkiller Didn’t Cause Elderly Woman’s Heart Attack

ATLANTIC CITY, N.J. (AP) — Elaine Doherty was the typical patient to whom drug maker Merck & Co. marketed its former blockbuster painkiller Vioxx: a senior citizen with arthritis and other ailments common among older folks, including heart disease.

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Those conditions, from blocked arteries and high blood pressure to obesity and diabetes, led an Atlantic County jury on Thursday to blame the 68-year-old woman’s heart attack on her medical problems, not Vioxx, which is now the subject of at least 16,000 product liability lawsuits.

Capping a trial that began on June 5, the jury of five men and two women found that Vioxx was not a substantial factor in Doherty’s 2004 heart attack, so Merck will not have to pay compensatory or punitive damages. The jury also found Merck did not violate New Jersey’s consumer fraud law, meaning it used good faith in its marketing and did not conceal Vioxx risks.

Five jurors voted to absolve Merck, although two did blame Vioxx for the heart attack.

“Some of us believed that Vioxx truly hurt her, and the rest didn’t,” juror Joseph Calabrese said afterward. He described Doherty’s cardiac risk factors, which included severely blocked arteries, as “insurmountable” for the jury.

Juror Dorrine Simms disagreed. “I still think that Vioxx contributed to it. She had her risk factors contained,” Simms said.

The jury found that Merck properly warned doctors about the drug’s cardiac risks, but did not warn the woman, the first time a jury in a Vioxx liability case has considered whether patients were warned.

Gene Locks, head of the law firm representing Doherty, called that finding a “major precedential victory in favor of plaintiffs,” although it resulted in no damage award in this case.

The jurors reached their decision after deliberating for 9 1/2 hours over two days. The victory was the fourth in seven Vioxx trials for Whitehouse Station, N.J.-based Merck, which plans to appeal the multimillion-dollar verdicts against it in the other three cases.

“Obviously, we’re extremely happy with the verdict,” said Jim Fitzpatrick, an outside attorney speaking for Merck.

“This is the fourth case to go to verdict in New Jersey and on three out of four cases, the jury has found in Merck’s favor on the product liability claim,” Fitzpatrick added. “This really reinforces our strategy of defending (lawsuits) individually.”

Doherty’s husband, Daniel, clutched his wife’s hand as they rose before the verdict was read. Afterward, the couple spoke quietly with their attorneys but did not comment as they left the courtroom.

Lawyers for Doherty, a grandmother of six from Lawrenceville, N.J., argued that Vioxx was a major cause of her heart attack and that Merck downplayed the risks of Vioxx both to doctors and to patients. Doherty, the first female Vioxx user whose case has come to trial, had taken Vioxx for 2 1/2 years for arthritis before suffering a mild heart attack in January 2004.

Merck lawyers countered that company officials disclosed the drug’s risks appropriately and that Doherty’s own cardiac risk factors were responsible for her heart attack.

Merck’s lead attorney, Diane Sullivan, who successfully defended the company in this case and another New Jersey suit last fall, said having a jury decide whether a patient — not just a physician — was warned about such side effects was unprecedented. She said her team was surprised the judge made it part of the jury’s instructions, and would argue against including it in future Vioxx cases — even though she said consumers were adequately warned.

“Had we had notice this was going to be part of the case, we would have put on a defense to it,” Sullivan said. “The duty to warn … is really to the physician. You can’t get Vioxx at the supermarket.”

At its peak, Vioxx was a $2.5 billion-a-year blockbuster for Merck. It withdrew Vioxx from the market on Sept. 30, 2004, saying research showed it doubled the risk of heart attack and stroke after 18 months’ use. Data released since then indicate the heart risks started much sooner and persisted at least a year after people stopped taking Vioxx, although Merck has disputed that.

Merck has vowed to fight each Vioxx lawsuit individually and has set aside $970 million in reserve for its legal costs, of which $285 million had been spent as of the end of 2005.

Merck shares gained 24 cents to close at $36.94 on the New York Stock Exchange.

Merck: http://www.merck.com