Healthy Skepticism Library item: 7223

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Publication type: news

McConnaughey J.
Jury Clears Merck in Latest Vioxx Trial: Merck Lawyers: Evidence in 11th Vioxx Case Shows Why Company Wants to Try Each Suit Separately
Yahoo Finance 2006 Nov 16
http://biz.yahoo.com/ap/061116/vioxx_federal_trial.html?.v=2

Abstract:

Evidence brought out the trial in 11th case alleging that Merck & Co. covered up dangers of its painkiller Vioxx shows just why the company wants to try each of the thousands of lawsuits on its own, company attorneys say.
“Each involves specific facts. It’s hard to support generalizations,” attorney Phil Beck says.

A federal jury on Wednesday cleared Merck in the July 2003 heart attack suffered by a Utah bank credit manager who had taken the once-popular painkiller Vioxx for 10 1/2 months.

It was Merck’s third win out of four federal cases — and its sixth overall. It has lost one federal case and three in various state district courts. The 11th case was originally a Merck victory, but the judge overturned the verdict and ordered a new trial.

“Our strategy has now resulted in seven favorable jury verdicts, including four of the last five cases, and more than 3,000 case dismissals,” Kenneth C. Frazier, the company’s general counsel and an executive vice president, said in a press release.

In this case, Charles Laron “Ron” Mason, 64, a retired bank credit manager from Salt Lake County, blamed the drug for the heart attack which he suffered in July 2003. He had taken Vioxx after years of taking other anti-inflammatory drugs because of back pain.

Beck said he and co-counsel Tarek Ismail made two crucial points during trial. One was Mason’s acknowledgment under cross-examination that he had stopped taking Vioxx four days before the heart attack. The other was that film taken during the operation to open his blocked artery showed that the blockage was almost all plaque, rather than a big blood clot.

Plaintiffs around the country have argued that Vioxx keeps the body from making an anti-clotting enzyme, thus increasing the chance that clots in blood vessels will cause strokes and heart attacks.

Beck said he and Ismail had suspected that Mason had stopped taking Vioxx the Monday before his heart attack, when his chest pains began, and that Mason had simply forgotten that fact.

Ismail designed his questions to point this out, Beck said. “When the evidence was in front of him, he was the one who said, `I did not take Vioxx on any of those days.’”

During his closing argument, Beck focused on those four days without Vioxx.

“Vioxx cannot cause a heart attack if it is not in the system,” he told the jury. “Vioxx is out of the system in a few days. Once it’s out of the system, it cannot have any effect.”

The angioplasty film “showed there was no big blood clot that he would have had to have under the plaintiffs’ theory,” Beck said.

And, he told jurors in his closing argument, the New Orleans doctor who had testified that he believed Vioxx caused the heart attack also testified that he had never seen that film and was not qualified to evaluate it. Nor was he brought back to the stand to explain how the drug’s effect might have continued.

Ed Blizzard, Mason’s attorney, countered that in scientific studies, heart attacks within two weeks after stopping a drug are counted among its side effects.

Jurors deliberated about 90 minutes. None of the five men and two women would comment.

Mason, who was seeking about $690,000 in lost wages and other damages, also had no comment about the verdict. “We thought we had proved the case. Obviously the jury didn’t agree,” Blizzard said. He said they had not decided whether to appeal.

Merck has appealed all of its losses.

Beck noted that the plaintiffs’ steering committee had chosen Mason’s case as one they wanted to try early.

“It’s gratifying that we were able to defend against a case that the plaintiffs considered one of their strongest and against topflight lawyers,” Beck said.

In his closing argument, Blizzard had said that the drug had lasting effects that didn’t go away between the Monday that Mason began taking a different painkiller for chest pains and the Friday of his heart attack.

A physician brought as a witness for Mason testified that the plaque in Mason’s arteries had been forming for decades, and that Vioxx had nothing to do with either its formation or the break that brought on the blood clot which caused the heart attack, Beck said.

The realization that Mason hadn’t taken Vioxx immediately preceding the heart attack “was a surprise to us. It was a surprise to Mr. Mason. But it is not what this case is about,” Blizzard countered. “This is not about four days. It is about ten months that he took the drug.”

Blizzard said Merck withheld crucial safety information from doctors and patients, and from Karen Olson, the nurse-practitioner who prescribed it for him during a checkup in September 2002. Mason had taken anti-inflammatory drugs for years because of chronic back pain.

Olson testified that she had asked Merck representatives specifically whether Vioxx was safe for the heart, and was reassured that it was indeed safe, Blizzard said in his closing argument Wednesday.

Mason’s case is among more than 24,000 filed since Merck withdrew the drug from the market two years ago because of evidence that Vioxx doubled patients’ risk of heart attacks and strokes.

Another 15,000 potential plaintiffs have agreements temporarily suspending the time to sue, and Merck disclosed last week that a Canadian judge has approved a class action suit for residents of Quebec.