Twin snags hamper Merck in Vioxx litigation

Merck lawyers encountered two snags in Vioxx litigation last week as jurors in a federal Vioxx trial awarded the plaintiff $51 million in damages and a New Jersey state judge threw out an earlier favorable verdict for the company. In the federal trial, which took place in US District Court in New Orleans, the jury found that Merck was negligent for failing to adequately warn doctors of plaintiff Gerald Barnett that Vioxx could increase the risk of heart attacks. In the New Jersey case, additional evidence prompted Judge Carol Higbee to set aside the November 2005 verdict for Merck. The evidence, according to attorney Christopher Seeger, showed that Merck withheld information showing heart attacks could come with use of Vioxx for less than 18 months, the Associated Press reported. Seeger represents Frederick “Mike” Humeston, the plaintiff in the NJ case. In a statement, Merck said it disagrees with judge Higbee's decision and is considering its legal options. The judge ordered a new trial early next year on the basis of the post-trial evidence. As for the federal decision, Merck said it will appeal. The $51-million award includes $1 million in punitive damages for what the jury said was "wanton, malicious, willful or reckless disregard for the plaintiff's rights." Barnett alleged that he took Vioxx for 31 months before suffering a July 2002 heart attack, which he blamed on Vioxx. The 62-year-old underwent a quintuple bypass after the heart attack at age 58 but had exercised, stuck to a healthy diet and brought down his cholesterol with drugs, his attorney, Mark Robertson, argued. Barnett took the painkiller another two years and stopped shortly before Merck pulled it from the market in September 2004 on evidence that it increases the risk of heart attacks. According to court papers, his doctor said that if Merck had disclosed the drug’s risks earlier, he would never have prescribed it for Barnett. Merck has won five of nine trials and faces more than 14,000 lawsuits related to Vioxx. The company won the first federal Vioxx trial, in which the drug was blamed for the death of a Florida man who had taken the drug for less than a month, but last year was socked with a $253.4 million judgment by a Texas state-court jury. As many as eight more trials are slated to start this year, as the expiration date nears in most states for people to file suits claiming the COX-2 drug caused their heart attack or stroke.

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