Vioxx Trial Jury Hears Closing Arguments
By LINDA A. JOHNSON
ATLANTIC CITY, N.J. – Severely clogged arteries, obesity and other factors caused a 68-year-old grandmother’s heart attack – not her use of Vioxx, lawyers for the drug’s maker told jurors during closing arguments Tuesday in New Jersey’s latest case over the withdrawn painkiller.
While plaintiff Elaine Doherty of Lawrenceville had lost 100 pounds and taken steps to reduce her blood pressure, cholesterol level and other risk factors, it wasn’t enough to prevent her January 2004 heart attack, Merck & Co. attorney Diane Sullivan told the jury.
"For somebody like Mrs. Doherty, it’s not whether you’re going to have a heart attack, it’s when," she said. "It would be hard to find somebody with more risk factors for a heart attack."
Vioxx was once a $2.5 billion-a-year blockbuster for Whitehouse Station-based Merck, which withdrew Vioxx from the market on Sept. 30, 2004, saying its own research showed it doubled risk of heart attack and stroke after 18 months’ use. Data released since then indicate the risk started much sooner and persisted after people stopped taking Vioxx, numerous doctors say.
Doherty’s lawyers have alleged that Merck downplayed the risks of Vioxx to doctors and to patients. Jurors in the case will vote on whether Merck failed to warn either group before they can consider whether Merck is to blame for Doherty’s heart attack and should have to pay damages.
Tuesday was the Atlantic County Superior Court jury’s first time in the courtroom in 12 days, mainly due to a shutdown of New Jersey state government during a budget impasse. Three of the original jurors dropped out over the break, leaving seven to deliberate. The trial began June 5.
Sullivan argued that tests taken the day of Doherty’s heart attack showed her blood was thin and not likely to clot, arguing that meant Vioxx wasn’t at fault. Plaintiffs lawyers and many doctors have said Vioxx triggered heart attacks by causing blood clots.
Sullivan, who previously won a Vioxx case for Merck, said Doherty underwent bypass surgery shortly after having a mild heart attack because four of five heart arteries were at least 90 percent blocked. She said the heart attack itself was so mild that the plaintiff took three overseas trips and three family vacations last year.
Pointing to inconsistencies in the statements of the plaintiff’s expert cardiologist, Dr. John MacGregor, and other witnesses, Sullivan said some of their testimony couldn’t be true. She said MacGregor and another witness made large sums of money testifying against drug companies.
Repeatedly invoking Merck’s reputation for thorough research, she said the company sent doctors letters about the drug’s cardiac risks once they were known. And she said because Merck didn’t discuss benefits of Vioxx in consumer ads, it wasn’t required to state its risks. Instead, the ubiquitous ads showed arthritis sufferer Dorothy Hamill ice skating without pain, due to Vioxx.
Merck now faces more than 13,000 Vioxx-related lawsuits and has vowed to fight them one by one. It has lost three trials so far, with juries awarding multimillion-dollar verdicts in each. The company plans to appeal those losses.
The New Jersey trial is the seventh over Vioxx; an eighth trial is under way in Los Angeles.
Doherty’s lawyers were to present their closing argument Tuesday afternoon, with the jury expected to begin deliberating Wednesday morning after receiving instructions from Superior Court Judge Carol Higbee.
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