Ex-Marine ready for fight against Merck

Published in the Asbury Park Press 09/5/05

THE ASSOCIATED PRESS

TRENTON — Frederick "Mike" Humeston, long bothered by knee pain from a Vietnam War wound, had been taking the painkiller Vioxx for barely two months when he had a heart attack four years ago.

Now 60, the postal worker and ex-Marine has permanent heart muscle damage, is constantly fatigued and worries about increased risk of a second heart attack, said Chris Seeger, one of his lawyers.

In the first product liability trial since a Texas jury hit Vioxx maker Merck & Co. with a whopping $253.4 million verdict last month, Humeston's lawyers plan to argue the Boise, Idaho, man had a healthy heart and that Vioxx triggered his heart attack. The trial is set to begin Sept. 12 in Atlantic City, about 100 miles from Merck's headquarters in Whitehouse Station.

"This was a heart attack that shouldn't have happened," Seeger said. "My experts are going to have no problem establishing that Vioxx was the cause."

Jim Fitzpatrick, a Merck spokesman and lawyer, said the company has "a very strong defense" focused on Humeston's medical records and cardiac risk factors. Those include his age, obesity, sedentary lifestyle, high cholesterol and high blood pressure, according to a pending Merck motion that seeks to exclude testimony by medical experts Seeger has lined up.

New Jersey Superior Court Judge Carol A. Higbee will preside over the trial and is coordinating about 2,475 Vioxx cases filed in New Jersey. The state has half of almost 5,000 personal injury cases filed against Merck so far because suing in the company's home state prevents Merck from trying to move the cases to federal court, which lawyers perceive as less friendly to plaintiffs. Merck also faces about 2,100 lawsuits in federal courts.

Merck pulled Vioxx from the market last September when research showed the arthritis drug doubled the risk of heart attack and stroke after 18 months' use.

Plaintiff attorneys and some doctors have argued Merck knew the risks of Vioxx at least a few years earlier, yet played down its dangers and kept aggressively promoting the drug. Attorneys for Merck say the company acted responsibly, putting patients first and pulling the drug once the risks surfaced.

Merck's profits and revenue already are down sharply without Vioxx, which generated $2.5 billion in sales in 2003. Two other top drugs face generic competition and plunging sales in the next few years, and analysts consider Merck's pipeline of experimental medicines weak.

The Humeston case will be watched closely by attorneys, stock analysts and others looking for signs to the scope of Merck's liability over Vioxx, now estimated by analysts at $5 billion up to $50 billion.

Until late last month, Merck lawyers insisted they would fight every lawsuit individually. Now they say they will consider settling some lawsuits, ones where patients took Vioxx for at least 18 months and had little or no risk of cardiac problems.

Jury selection in the Humeston case will begin Sept. 12, and the lawyers could give their opening arguments starting Sept. 14.