Merck's second Vioxx trial begins today in Atlantic City, N.J. The plaintiff, Frederick "Mike" Humeston, of Idaho, suffered a heart attack in 2001 after taking Vioxx.
The drug maker is hoping for a reversal of fortune after a Texas jury in the first case awarded $253 million in punitive damages to the family of Robert Ernst. That decision will be appealed and will likely be reduced due to a state cap on punitive damages.
Merck will continue to put a strong emphasis on scientific evidence, as it seeks to deflect accusations of a link between Humeston's heart attack and Vioxx, which the firm withdrew after a study showed it doubled heart attack risk.
"We continue to learn as we go along and will make modifications as we present our case, but the fundamentals of our case really are going to stay the same," said Kenneth Frazier, Merck general counsel, during a conference call last week.
Jurors interviewed after the first trial said that the plaintiff's lead attorney, Mark Lanier, made a strong impression on them with dramatic exhibits of Merck's marketing tactics designed to paint the company negatively. The Merck legal team's dry, scientific approach, which stressed causality, did not.
If a change in its legal strategy is planned, the drug maker is keeping it close to the vest. "We don't believe in gimmicks. We believe in telling the straight story, and we're going to continue to tell the straight story, hopefully in a way that jurors can resonate with," Frazier said.
Chris Seeger, Humeston's lawyer, has said his client has a stronger case than Ernst's, as Humeston's heart attack is documented, and he presented at the hospital with clear arteries, Seeger said.
The coroner in the Ernst case listed the official cause of death as an arrhythmia--although she later testified that he could have had a heart attack--and Vioxx has not been linked to arrhythmias.
But, according to Frazier, Merck filed motions with the N.J. court stating that Humeston only took Vioxx intermittently for approximately two months and had multiple preexisting risk factors for a heart attack, from which he recovered without suffering significant cardiac impairment.
"There is no medical or scientific evidence that Vioxx contributed to his heart attack," Frazier argued.
The first stage of the trial is jury selection in N.J. superior court.
Frazier added that the first federal case is still set for trial on November 28 but that an acceptable venue has yet to be decided. The case originally was to take place in New Orleans.