New Vioxx Trial Opens, Merck Accused of Hiding Risks

ATLANTIC CITY, New Jersey — 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.