Merck Suffers 2 Setbacks in Vioxx Cases

By MARY FOSTER Associated Press Writer
? 2006 The Associated Press

NEW ORLEANS - Merck & Co. suffered two major legal setbacks over the
withdrawn painkiller Vioxx on Thursday when a federal jury here ordered
the drug maker to pay $51 million to a heart attack victim, and a state
judge in New Jersey overturned a November verdict favoring the company.

In New Orleans, the jury found that Merck "knowingly misrepresented or
failed to disclose" information about Vioxx to retired FBI agent Gerald
Barnett's doctors. It said Barnett, of Myrtle Beach, S.C., should get
$50 million in compensatory damages. And it added $1 million in
punitive damages, saying Merck "acted in wanton, malicious, willful or
reckless disregard for the plaintiff's rights."

In New Jersey, state Superior Court Judge Carol Higbee ruled evidence
uncovered since the November verdict showed that Merck withheld
information showing heart attacks could come with use of Vioxx for less
than 18 months, said attorney Christopher Seeger.

Seeger represents Frederick "Mike" Humeston, of Boise, Idaho, who had a
heart attack in September 2001.

"Merck consistently said throughout the trial that you had to be on
Vioxx for 18 months to be at increased risk of a heart attack," Seeger
said. "And that was false. They had data that people were having heart
attacks within weeks."

The lawsuits are among more than 16,000 Vioxx-related suits against
Merck in state and federal courts.

Discussing the New Orleans verdict, David Logan, dean of Roger Williams
University School of Law in Bristol, Rhode Island, said it will put
pressure on Merck to consider settling cases.

"How long can Merck carry the cost of these verdicts?" Logan asked.
"None of these cases are coming back small."

He said both the cost of litigation plus the management time devoted to
overseeing the Vioxx cases takes resources away from Merck that should
be spent on developing new products. "This is a drag on Merck going
forward," he said. "it is an enormous tax on the company moving
forward."

Merck shares slumped $1.95, or almost 2 percent, to $39.23 on the New
York Stock Exchange on Thursday afternoon.

Barnett's lawyer, Mark Robinson, had asked for $25 million in punitive
damages, arguing that it would send a message to drugmakers that they
should not rush pharmaceuticals to market. Merck's lawyer, Phil Beck,
argued that no further awards were needed to punish the drugmaker.

"My guess is that you have already awarded punitive damages. You sent a
message loud and clear and the people at Merck heard that message,"
Beck said.

Outside the courtroom, Barnett said little, only that he was "very
happy" with the verdict. Robinson said he was not disappointed with the
relatively small punitive award, saying he wanted punitive damages
added as a symbolic gesture to deter drug companies from putting unsafe
{*filter*} on the market.

On its verdict sheet, the jury had the chance to assign percentages of
fault to Merck and various physicians, but assigned blame only to
Merck.

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 in that case came back in less than
four hours with a verdict for Merck.

In state courts, before Thursday, Merck had won four cases in New
Jersey and California. It had lost two cases in Texas and one in New
Jersey.

The jurors who decided the Barnett case have at least two things in
common with the plaintiff: All eight are men and they're all getting
older.

Beck pointed out in closing arguments Wednesday that both are risk
factors for heart attacks, and neither can be controlled.

Robinson 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 {*filter*} to control his cholesterol.

He told the jury that 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.

Logan said that jurors may have empathized with Barnett. "Plaintiff
lawyers want jurors to think `There but for the grace of God goes me.'"
he said.

___

AP business writers Theresa Agovino in New York and Jeffrey Gold in
Newark, N.J. contributed to this story.

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