- The Washington Times - Thursday, November 3, 2005

ATLANTIC CITY, N.J. (AP) ? Merck & Co. won its first court battle over its Vioxx painkiller yesterday when a New Jersey state jury found that the drug maker properly warned consumers about the risks of the medication. The verdict absolved Merck of liability for a heart attack suffered by a Vioxx user.

After deliberating for less than eight hours over three days, the jury cleared the nation’s No. 5 pharmaceutical company of charges it failed to warn consumers about the drug’s risks and engaged in “unconscionable commercial practices” in marketing it to doctors and their patients.

The verdict was Merck’s first win out of two Vioxx-related trials. In August, a Texas jury found the company liable in a Vioxx user’s death. Merck is appealing that ruling yet still faces about 7,000 lawsuits over Vioxx, which it voluntarily pulled off the market last year because of links to heart attacks and strokes after 18 months’ use.

Much of the seven-week New Jersey trial, eagerly watched by lawyers and plaintiffs from across the country, relied on the testimony of medical experts. Witnesses for Merck testified the company believed Vioxx was safe for the heart before the drug was pulled from the market in response to a study that showed it doubled risk of heart attacks and strokes when taken for at least 18 months.

Yesterday’s verdict means it might take several more cases, including a federal case that will start Nov. 28 in Houston, before lawyers can find any sort of precedent that might determine Merck’s ultimate Vioxx liability.

Merck was clearly elated by its victory.

“We feel very much vindicated,” Merck general counsel Kenneth Frazier said. “The jury found in our favor, we believe, because the evidence showed that Merck acted responsibly.”

Merck’s stock rose $1.07, or 3.8 percent, to $29.48 after the verdict. More than 32 million shares changed hands in barely two hours on the New York Stock Exchange — about four times the stock’s normal daily volume.

Wall Street analysts said the company clearly will face huge legal costs given its plan to fight each lawsuit. The company has set aside just $675 million for legal defense costs, but nothing for jury awards or settlements.

About 20 million Americans took Vioxx after it reached the marketplace, embracing it for its effectiveness in relieving pain while sparing them the upset stomachs, ulcers and other gastric problems associated with some other analgesics. At its peak, Vioxx was a $2.5 billion-a-year blockbuster.

The verdict capped a trial centering on Frederick “Mike” Humeston, 60, of Boise, Idaho, who was stricken two months after he began taking the drug to ease pain from a Vietnam war knee injury.

Mr. Humeston’s lawyer, Chris Seeger, said he was “absolutely surprised” by the verdict.

“I have to kind of sit and reassess what went wrong here. My desire to try more cases is way up right now,” Mr. Seeger said. “Merck is based in New Jersey. Maybe that factored into this jury pool.”

The company’s lawyers used expert cardiologists, Merck scientists and data from clinical studies to convince jurors that Vioxx couldn’t have caused Mr. Humeston’s heart attack.

They also succeeded in pushing the blame onto Mr. Humeston, using his own medical records to show he was at risk for heart disease because of high blood pressure, too much weight and stress over a dispute with his U.S. Postal Service superiors.

Only one juror — casino worker Juan Garcia, of Atlantic City — thought Merck failed to give adequate warnings about Vioxx’s risks.

“I think they should have known and explained more to the doctors and everyone,” said Mr. Garcia, who said he believed Vioxx had a role in Mr. Humeston’s heart attack.

Mr. Humeston showed no emotion when the verdict was announced but said later he hoped it wouldn’t discourage others who have filed suits.

During the trial, Merck repeatedly reminded jurors that the U.S. Food and Drug Administration had approved Vioxx as safe and effective on four occasions for use against different types of pain, the last a month before Merck recalled it.

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