Vioxx trial opens as Merck accused of hiding risks

By Martha Graybow

ATLANTIC CITY, New Jersey (Reuters) – Merck & Co. Inc. knew
of heart risks linked to its painkiller Vioxx but kept them
from doctors and patients as it pursued big profits, a lawyer
for a man who blames the drug for his heart attack said at the
second Vioxx trial on Wednesday.

“He would not have had this heart attack if it had not been
for this drug,” Christopher Seeger, a lawyer for 60-year-old
postal worker and ex-Marine Frederick “Mike” Humeston, told
jurors in opening statements at New Jersey Superior Court in
Atlantic City.

Merck knew of cardiovascular risks associated with the drug
“and never said anything to anybody — all to preserve their
billion-dollar blockbuster product,” Seeger said.

The drug company says it did not put profits before patient
safety; it performed many studies on the medication; and
Humeston’s age, obesity, high cholesterol and high blood
pressure — not Vioxx — led to his heart attack in 2001.

What the “evidence is going to show you is that Merck
followed all of the rules,” Merck lawyer Diane Sullivan told
the jury. The company is fighting the case in its own backyard
of New Jersey, which Sullivan made a point of telling jurors
accounts for about 10,000 members of the company’s
62,000-member worldwide work force.

“For you to believe plaintiff’s case, you are going to have
to believe that all of those people got together and did
something sinister,” said Sullivan, of law firm Dechert LLP.
“That’s not what happened here.”

In this casino resort town about 125 miles from Merck’s
Whitehouse Station, New Jersey, headquarters, both sides are
taking a gamble by bringing their case to a jury, which is
being asked to decide whether the giant pharmaceutical maker
violated the state’s product liability and consumer protection
laws in its sales of Vioxx.

The case is being closely watched — in part because
roughly half of the 5,000 Vioxx lawsuits Merck faces have been
filed in New Jersey.

In the first Vioxx trial, a Texas jury last month ordered
the company to pay a stunning $253 million to a widow whose
husband died of heart arrhythmia after taking the medication.

Merck has vowed to fight each Vioxx suit one by one and
says it has a strong case on appeal in the recently completed
Texas trial. Regardless of the outcome of that appeal, the
damage award in that case is likely to be cut to about $26
million because Texas caps punitive damages.

If Merck lost more cases at trial, though, some analysts
and legal experts say the company might be forced to explore a
wide settlement that could cost billions. Merck says it has no
plans to enter into any “global settlement” in the litigation.

The drug maker pulled Vioxx from the market nearly a year
ago, when it said it became aware that the medication increased
the risk of heart attack and stroke in patients who took it for
18 months or longer. Vioxx was one of Merck’s best-selling
medications, with annual sales of about $2.5 billion and an
estimated 20 million users in the United States alone since it
was introduced in 1999.

Merck lawyer Sullivan said Humeston only took the drug for
about two months and so he was not in “that very small class of
people” who could be at increased risk of heart problems from
taking Vioxx over the long term.

Humeston is expected to testify at the trial — a key
difference from the first Vioxx case, which was brought on
behalf of a man who had died and was unable to be seen or heard
by the jury. Many of the same internal Merck documents
presented in the Texas trial are expected to be shown to jurors
in this case.

Humeston took the drug for lingering knee pain for a
shrapnel wound he suffered during the Vietnam War. The Boise,
Idaho, resident was an active man who enjoyed hikes in the
mountains before his heart attack, Seeger said. At one point,
Seeger asked Humeston to stand for the jury in an effort to
counter Merck’s contentions that his client was obese.

“This isn’t a guy who neglected his health. He took care of
it,” he told jurors.

The panel is made up of six jurors and four alternates.
Five of the six jurors will be needed to return a verdict in
favor of one side or the other.

The trial is expected to last four to five weeks.