- The Washington Times - Friday, August 19, 2005

ANGLETON, Texas (AP) — Merck & Co.’s first wrongful-death verdict over its painkiller Vioxx came in a case that was not seen as especially strong, and is likely to inspire thousands of more suits on top of the 4,200 already filed against the drug maker, analysts said yesterday.

Analysts already have estimated Merck’s liability could be as high as $18 billion, and that number could now rise.

Merck & Co.’s stock sank $2.35, or 7.7 percent, to close at $28.06 on the New York Stock Exchange yesterday. The jury awarded $253.4 million in damages to a widow of a man who died in 2001 of heart arrhythmia, or irregular heartbeat, after taking Vioxx for about eight months. The company plans to appeal.

Merck yanked the popular pain reliever from the market in September after a study found it doubled patients’ risks of heart attacks and strokes after 18 months.

The loss is especially damaging because Merck had been expected to win what was considered a weak case because no studies have linked Vioxx to arrhythmia. The next two cases Merck faces appear somewhat stronger, according to specialists.

“If they can’t win the weak ones, what does that say about the strong ones?” asked Anthony Sebok, a professor at Brooklyn Law School.

Analyst Jason Napodano of Zacks Investment Research said anyone taking Vioxx with any type of a cardiovascular problem will feel emboldened to file a lawsuit. So far, more than 4,000 cases have been filed, some presumably stronger than the Angleton case. Merck has set aside $675 million to fight them.

“A Merck loss means that the number of cases against them increases tenfold,” Mr. Napodano predicted.

If the verdict marks the beginning of a losing streak, Merck may back away from its pledge to try each case individually and not settle any, analysts said. But they said a rash of verdicts would be necessary before the company changes its strategy.

“Merck says there will be no surrender. But you have to wonder if that will be true,” Mr. Sebok said.

The plaintiff’s lawyer, Mark Lanier, attempted to convince the Angleton jury that the plaintiff’s husband, Bob Ernst, died of a heart attack at the age of 59.

Mr. Lanier flew Dr. Maria Araneta, who performed Mr. Ernst’s autopsy, in from the United Arab Emirates, where she had moved since performing the autopsy in 2001. She testified that although her report said Mr. Ernst died of an arrhythmia, it was likely he had a heart attack.

“I’m not changing my opinion, I’m just explaining it further,” she testified. “That’s the autopsy report, but it’s not the end of the story.”

She said Mr. Ernst probably had a heart attack because a clot blocked the blood flow in an artery that was already clogged with plaque. She also said CPR conducted on Mr. Ernst probably dislodged the clot.

Mr. Lanier’s case provided other plaintiff lawyers with a blueprint for how to prove Merck behaved irresponsibly in promoting Vioxx, said Benjamin Zipursky, a professor at Fordham University School of Law.

“A Merck loss means the jury believes the plaintiff’s story about the company’s wrongful conduct,” he said. “That carries into the future.”

Merck would be foolish to dismiss Mr. Lanier’s victory as a fluke resulting from a talented Texas lawyer working his abundant Southern charm in what is considered a plaintiff-friendly venue, lawyers warned.

“Mark Lanier is an extraordinarily gifted attorney. But there are a lot of other gifted plaintiff attorneys and other favorable venues,” said Charles Rhodes, a law professor at South Texas College of Law in Houston. “Maybe Merck will get less damages outside of Southeast Texas, but there will still be damages.”

Next month, Merck faces a trial in Atlantic City, N.J., brought by Michael Humeston, a former postal worker, who had a heart attack in 2001.

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