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The nation’s second trial over health effects of the drug Vioxx got swamped in New Jersey on Thursday, as a jury categorically rejected claims that failure to warn about the painkiller’s risks caused a user’s heart attack. The jury found, 8-1, that Merck & Co. properly alerted prescribing physicians to a link between Vioxx and an increased risk of cardiovascular events, and found unanimously that there were no consumer-fraud violations in the way Merck marketed Vioxx to physicians. As a result, the jury never reached the question of proximate causation of postal worker Frederick “Mike” Humeston’s heart attack. The verdict, rendered after eight hours of deliberation, is a victory on several fronts for the Whitehouse Station drugmaker and its lawyers. It likely will deter suits by plaintiffs like Humeston, who have short-term exposure to Vioxx and who are still alive. The verdict also resonated on Wall Street, where Merck shares rose six percent after the verdict, a welcome comeback after stock plummeted in the wake of a $253 million verdict in the first Vioxx trial in Angleton, Texas, in August. The verdict enables Merck to overcome the risk of collateral estoppel on the failure-to-warn issue. Had the jury found in the plaintiff’s favor on that count, the drug maker could have been precluded from retrying the issue of adequacy of its warnings. About half of the nation’s 6,400 Vioxx cases are venued in New Jersey. “Collateral estoppel as a risk is completely off the table,” says John Brenner of Newark’s McCarter & English, who is not involved in Vioxx cases but defends pharmaceutical companies. “This victory is very significant to Merck.” Moreover, the verdict showed Merck’s prowess in winning litigation on the ground. The company overcame a series of negative rulings by and friction with Atlantic County Superior Court Judge Carol Higbee throughout the eight-week trial, especially over the admissibility of certain scientific studies. The trial, and even the pre-trial conferences, had been marked by skirmishes between Higbee and Merck lawyer Diane Sullivan, of Dechert in Philadelphia. The judge delivered a major blow when she struck the testimony of Merck’s lead witness, finding he had “materially changed” what he had been expected to say based upon his deposition. At the center of the defense strategy was a memo by two Food and Drug Administration officials, concluding that short-term Vioxx use poses no greater risk of heart attack than similar pain relievers. Higbee first found the memo scientifically flawed, then allowed part of it in. During the trial, some observing plaintiffs’ lawyers said that Humeston’s lead attorney, Christopher Seeger, erred in putting emphasis on the complicated scientific issues, rather than on marketing practices. They also criticized the decision not to call David Egilman, a Brown University epidemiologist who had been expected to testify that scientific studies showed risks from short-term Vioxx use. Seeger, of Seeger Weiss in Newark, told reporters he was devastated by the verdict and sad for his clients, Humeston and his wife, Mary. Seeger has several hundred other Vioxx cases and he pledged to keep fighting. Other plaintiffs’ lawyers who have banded to litigate future Vioxx cases in state courts said Thursday that the defense verdict would not have negative implications for their strategy. “Everyone knew from the beginning that this was a difficult medical case and that Merck would present a vigorous and well-orchestrated defense focusing on the plaintiff,” said spokesman Christopher Placitella of Cohen, Placitella & Roth in Red Bank. “There will be wins and losses during the course of this litigation for both sides, depending upon the facts as presented in individual cases.” Placitella noted out that first six asbestos cases were lost before asbestos companies’ conduct was fully explained. “That is not the case here. One jury has already found the drug maker’s conduct so reprehensible that they awarded $250 million,” he said. “The liability evidence introduced was compelling.” Vioxx is the brand name for a painkiller Merck introduced in 1999. It is in a class of drugs known as Cox-2 inhibitors. More than 20 million Americans took the drug, making it one of Merck’s biggest sellers, grossing $2.5 billion annually. In September 2004, Merck withdrew Vioxx from the market based on studies that showed it caused heart attacks and strokes after prolonged usage — 18 months or more. The recall triggered an avalanche of litigation against the drugmaker. The next Vioxx case is scheduled to go to trial on Nov. 21 before a federal judge in the Eastern District of Louisiana, who has been temporarily relocated to Houston.
Lisa Brennan is a reporter for the New Jersey Law Journal , and ALM publication where this story first appeared.

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