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Merck accused of hiding risks as Vioxx trial opens

Posted on: Wednesday, 14 September 2005, 15:51 CDT

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.

Source: REUTERS

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