Merck Wins Round Two

Merck & Co. proved it could win Vioxx suits Nov. 3 when a jury said the drug was not responsible for the heart attack suffered by Idaho postal-worker Frederick Humeston. More important, the jury decided that Merck gave adequate public warning about the drug’s safety risks.  Experts are split over the reasons for Merck’s victory and its implications for future trials.

    “It was tremendously important for the company to establish the fact that it can win Vioxx cases in front of juries,” said Tom Dewey, partner at Dewey Pegno & Kramarsky LLP.

    Dewey noted that this was an easier case for Merck to win than the first trial, which was decided in Texas this August, because the plaintiff took Vioxx for a shorter period, was still living, and had other heart-related risk factors.

    If Merck had lost this case, “it would have opened practically everyone to litigation,” said John Calfee, resident scholar at the American Enterprise Institute.

    But Evan Schaeffer, a partner at Schaeffer and Lamere PC who is involved in prosecuting Vioxx cases on the Illinois and Missouri border, pointed out that jurors did not decide on the issue of causation.

     “Once they found, as an initial matter, that Merck did nothing wrong, their deliberations stopped,” he said via email. “Although I think Humeston was weaker on causation than Ernst [the Texas trial] there’s no way to know if that fact played a role in the result.”

    Schaeffer said the main difference between the Texas and New Jersey trials was how Merck handled internal documents.

    “That’s what Merck accomplished in New Jersey,” he said. “Merck’s lawyers were able to put Merck’s internal document in a better light-though a false light, in my opinion.”

    Merck did a good job of getting jurors to focus on the fact that FDA approved Vioxx and that the company added a warning to the drug’s label at the agency’s request, said Carl Tobias a law professor at the University of Richmond.

    “A lot of it does have to do with the basic core proof of the warnings,” he said. “What Merck did that seemed to work was to stress FDA approval and warnings to emphasize the risk factors that the plaintiff had.”

    The presentation of scientific information was another big difference between the Ernst and Humeston trials, according to Dewey.

    “Merck did a better job of presenting the science to this jury,” he said.

    According to published interviews with jury members from the Texas trial, the plaintiff explained the scientific basis of its argument more effectively than Merck. This time around, This time around, Merck selected people who could focus on and ask questions about the scientific issues of the case.

    Another possible factor in Merck’s victory, although no one is sure how much weight it carries, is that the trial took place in the company’s home state. This might cause plaintiffs to place more emphasis on the locations for future trials, according to Calfee.

    “It certainly was not a negative,” Dewey said.

    Going forward, the Humeston result may discourage plaintiffs from filing new suits, Dewey indicated. It will slow down the rate of filing that increased significantly after the Ernst verdict, he predicted.

    Tobias speculated that the gatekeeper role of the judge in the upcoming federal trial could change the way both sides present evidence. Federal judges scrutinize the evidence before it is presented to the jury, he explained. He predicted that this might cause difficulties for the plaintiff.

    But Schaeffer believes that, in spite of this loss, Vioxx plaintiffs have more victories on the way.

    “That’s the nature of the jury system,” he said via email. “Each case is different and it will take quite a few more before anyone can say with certainty how this litigation will end.”