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As the third New Jersey Vioxx trial began in Atlantic City last Monday, lawyers for the plaintiffs in the last trial were trying to keep a $13.5 million jury award intact. The lawyers asked Superior Court Judge Carol Higbee to deny Merck & Co.’s motion to set aside the April 11 verdict or grant a new trial based on “manifest denial of justice.” In the trial just begun, Merck faces Elaine Doherty, 68, of Lawrenceville, who took Vioxx for three years before her 2004 heart attack. Her attorneys are Michael Galpern and James Pettit of the Locks Law Firm in Cherry Hill and Philadelphia. Doherty’s lawyers argue that she is the type of patient who needed to be warned about the dangers of Vioxx as soon as the company knew of the drug’s cardiovascular risks. She suffers from diabetes, severe heart disease and high blood pressure. Merck has brought back Diane Sullivan, of Dechert’s Princeton office, who won the state’s first Vioxx trial last fall. Sullivan’s co-counsel is Paul Strain of Venable in Baltimore. Merck is facing more than 11,500 suits over Vioxx, the painkiller it took off the market in 2004 after a study linked it to a risk of heart attack and stroke. In the trial concluded in April, the jury found Merck committed consumer fraud by knowingly withholding data from regulators about Vioxx’s cardiovascular risks and engaging in “wanton and willful” conduct. The jury awarded John McDarby and his wife Irma $4.5 million in compensatory damages and $9 million in punitives. (Co-plaintiff Thomas Cona, who claimed to have taken the drug for two years but had only three prescriptions to show, got nothing.) In motion papers dated May 8, Merck lawyer Hope Freiwald, of Dechert, argues that Higbee made legal and evidentiary errors and that plaintiffs’ counsel engaged in improper questioning and argument. She says Higbee erred in charging the jury that Merck could have changed its label, without government approval, to incorporate data about Vioxx’s cardiovascular risks. She says Higbee mistakenly directed a verdict as to proximate causation and permitted the jury to find medical causation on a mere showing that Vioxx may increase heart attack risk. She also says Higbee erroneously excluded a 2005 Food and Drug Administration memo that supported Merck’s Vioxx defense and evidence of personal use of Vioxx by Merck employees, Freiwald contends. And, she argues, Higbee erred in permitting plaintiffs’ counsel to argue unreliable and inadmissible theories of causation, Freiwald continues. Freiwald also accuses W. Mark Lanier, the lawyer for plaintiff Cona, of “bootstrapping” the alleged substantive violations of failure to warn and consumer fraud violations into the requirement to submit to the FDA the underlying relevant safety data about Vioxx. She says Lanier’s closing argument improperly tied Merck’s wealth to the size of the punitive damage award, in violation of a 2003 U.S. Supreme Court ruling to the contrary. Freiwald added that McDarby’s punitive award amounts to more than 15 percent of Merck’s $56.25 million in Vioxx profits in New Jersey. The plaintiffs’ response to the motion is in the form of a categorical denial. “Contrary to Merck’s arguments, plaintiffs’ counsel’s questioning of witnesses and closing argument . . . properly elicited and referred to evidence that was relevant,” Ellen Relkin, of New York’s Weitz & Luxenberg, says in papers filed on June 2. Relkin, whose partner Robert Gordon was McDarby’s trial counsel, says that during the compensatory damages phase, Higbee’s charges and evidentiary instructions were proper and fair; that the plaintiffs presented sufficient evidence that Merck breached its duty to warn; that the claim is not pre-empted by a new federal regulatory advisory opinion; that the evidence and law support the jury finding that inadequate warning was the cause of McDarby’s injury; and that the plaintiffs presented sufficient evidence of general and specific causation. Regarding the punitive-damages phase of the trial, Relkin argues that the plaintiffs presented sufficient evidence for the jurors to find that Merck knowingly withheld or misrepresented information required by the Food and Drug Administration and that Merck acted with wanton and willful disregard of McDarby’s rights. She also argues that Lanier’s questioning of witnesses and his closing argument elicited information relevant to Merck’s liability under the Punitive Damages Act, that Higbee’s jury instructions accurately conveyed the law and that any discrepancies in the charges were immaterial and did not produce an unjust result. Further, in light of the $4.5 million compensatory award, the $9 million punitive award was “not excessive and does not shock the conscience,” she says.

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