- The Washington Times - Thursday, August 17, 2006

NEWARK, N.J. (AP) — A state judge threw out a victory for Merck & Co. yesterday and ordered a new trial for a postal worker who blamed his heart attack on taking the company’s Vioxx pain medicine for two months. The company said it might appeal.

Superior Court Judge Carol Higbee ruled that evidence uncovered since the November verdict revealed that Merck withheld information showing that heart attacks could occur after using Vioxx for fewer than 18 months, said the plaintiff’s lawyer, Christopher Seeger.

“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,” Mr. Seeger said. “And that was false. They had data that people were having heart attacks within weeks.”

Merck disputed Mr. Seeger’s interpretation of the basis for the judge’s ruling.

It was the second legal blow of the day for Merck. The company, based in Whitehouse Station, N.J., also lost a federal trial in New Orleans over the withdrawn painkiller and was ordered by a jury to pay $51 million to a retired FBI agent who had a heart attack after taking the drug for more than two years.

In the New Jersey ruling, the judge overturned the verdict in a case brought by Mr. Seeger’s client, Frederick “Mike” Humeston, 60, of Boise, Idaho, who had a heart attack in September 2001. A jury in Atlantic City on Nov. 3 found Merck provided adequate warning of risks linked to Vioxx.

Mr. Seeger said the judge planned to have the retrial on Mr. Humeston’s lawsuit in January, probably along with another case. More than 16,000 Vioxx-related suits have been filed against Merck in state and federal courts.

In state courts, Merck had won four cases in New Jersey and California, and lost two cases in Texas and one in New Jersey. Judge Higbee’s ruling removes one of the New Jersey wins.

In federal court, the company now has one win and one loss.

Merck pulled Vioxx from the market in September 2004 when its own study showed that the painkiller could double the risk of heart attack or stroke if taken for 18 months or longer.

Ruling from the bench in Atlantic City, Judge Higbee based her decision on new depositions and an editorial published in the New England Journal of Medicine asserting that Merck withheld “very important heart-attack data from the public, and also that they didn’t correctly state the data in the trial,” Mr. Seeger said.

Merck lawyer Christy Jones disputed that the judge found information was withheld.

Another Merck lawyer, Ted Mayer, said the company disagreed with the Journal’s editorial, which came out after the verdict.

He said the facts behind the editorial “were known to the plaintiff long before the trial, and the jury was aware of the issue because it was presented by the plaintiff’s expert. The jury did not find the testimony persuasive in the original trial, and we do not believe that the (Journal editorial) would have in any way affected the outcome.”

Mr. Mayer also said that the company intended to maintain its policy of trying every Vioxx case.

Merck shares fell $2.35, or 5.7 percent, to close at $38.83 yesterday on the New York Stock Exchange.

It had traded from $25.50 to $41.78 in the past year.

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