Merck accused of hiding risks as Vioxx trial opens

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 in New Jersey Superior Court in
Atlantic City.

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

The drug company is hoping for a victory in this case after
losing the first Vioxx trial in Texas last month. A Merck
lawyer told jurors that the company 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 said.

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 before a jury, which is
being asked to decide whether the 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 is
appealing the verdict in the recently completed Texas trial.
Regardless of the outcome of the 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, some analysts say the
company might be forced to explore a wide settlement that could
cost billions.

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 had 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 was not in “that very small class of
people” who could be at increased risk of heart problems from
taking Vioxx.

The first witness was Humeston’s family doctor and personal
friend, who prescribed him Vioxx for lingering knee pain
stemming from a shrapnel wound he suffered during the Vietnam
War. Dr. Gregory Lewer said he had hiked in the desert and gone
on rafting trips with Humeston before the man had his heart
attack and that he did not believe he had elevated blood
pressure or cholesterol levels.

At one point in the opening statements, Humeston’s lawyer
asked his client to stand for the jury in an effort to counter
Merck’s contentions that Humeston was obese.

“This isn’t a guy who neglected his health,” Seeger said.

Humeston is expected to testify — a key difference from
the first Vioxx case, which was brought on behalf of a man who
had died and could not be seen or heard by the jury.

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.