Vioxx Trial Jury, Plaintiff Share Traits

By JANET McCONNAUGHEY

NEW ORLEANS – The jurors who will decide whether Merck & Co.’s once-popular painkiller Vioxx is at least partly to blame for a retired FBI agent’s heart attack all have at least two things in common with plaintiff Gerald Barnett.

All eight are men. And they’re all getting older.

Both are risk factors for heart attacks, and ones that cannot be controlled, Merck attorney Phil Beck pointed out during his closing argument Wednesday, and during his opening statement two and a half weeks earlier.

Barnett’s attorney, Mark Robertson, has emphasized that his 62-year-old client, who underwent a quintuple bypass after a heart attack at the age of 58, was careful to keep his risks as low as possible with daily exercise, a healthy diet and drugs to control his cholesterol.

He said the problem was Vioxx, which Barnett took for 31 months before his heart attack in July 2002. He continued to take the painkiller for another two years, stopping one week before Merck pulled it from the market in September 2004, after a study showed it increased the risk of heart attacks and strokes.

Like thousands of other state and federal court plaintiffs, Barnett contends that Merck hid that danger for years to protect a blockbuster that brought in $2.5 billion a year at its peak.

The jury couldn’t reach a verdict Wednesday, and was to return Thursday morning to continue.

Sex and age weren’t the only uncontrollable risk factors for Barnett, Beck told the jurors. In his opening statement, he had said others included a father who died of a heart attack and the stress of a wife who smokes even after treatment for tongue cancer.

"He’s not getting any younger," Beck said Wednesday. "He’s not going to change his sex – at least, he doesn’t seem the kind of guy who would do that. He’s not getting a new father. … He’s not getting rid of the stress of caring for his wife, and she has the medical condition she has."

Jurors must agree unanimously on whether Merck failed to warn Barnett’s doctors about the dangers, or even lied or hid information – and whether this contributed to the heart attack he suffered in July 2002.

A set of "no" answers to all three questions on this topic would mean a fifth Merck victory in nine trials.

A "yes" would mean the first victory involving a patient who was not seriously disabled or killed by a heart attack. Barnett, of Myrtle Beach, S.C., has less energy and a shorter life expectancy because of the heart attack.

Barnett’s lawsuit is among more than 16,000 Vioxx-related suits against Merck in state and federal courts. U.S. District Judge Eldon Fallon was appointed to handle pretrial matters for all the thousands of federal suits. He heard one before Barnett’s, and has three more scheduled for trials this fall.

The first federal trial had to be held twice. The first jury deliberated 18 hours over three days, but deadlocked over whether Vioxx was to blame for the death of a Florida man who had taken the drug for less than a month. The second jury came back in less than four hours with a verdict for Merck.