Merck faces war hero in next Vioxx trial

By Linda A. Johnson / AP Business Writer

TRENTON, N.J. (AP) -- 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, N.J.

"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.

"The evidence will show that Mr. Humeston's myocardial infarction didn't have anything to do with Vioxx," Fitzpatrick said.

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 the nearly 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 downplayed 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 revenues 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.

"If Merck is mostly successful, many plaintiffs may drop (lawsuits) or accept cheap settlements," said Howard Erichson, a Seton Hall University School of Law professor. But he added that "New Jersey is often perceived as relatively plaintiff friendly," like Texas courts.

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 -- a group where it would be more difficult for Merck to win in court.

In the Humeston case, a series of hearings on pretrial motions is to wrap up next Thursday. Jury selection will begin the following Monday, and the lawyers could give their opening arguments starting on Sept. 14. The trial is expected to last about five weeks.

Barry M. Epstein, a pharmaceutical industry defense attorney, said the onus will be on Seeger's team to prove Vioxx was at least a substantial factor in causing Humeston's heart attack.

"It is a very difficult thing for an expert to say that," Epstein said, adding, "The court doesn't have to buy it."

Another key issue will be Merck's marketing and promotion of Vioxx, a turning point in the Texas case. Jurors there said afterward that their verdict was a message to the pharmaceutical industry.

"I do think sometimes large drug manufacturers have difficulty seeing how the regular person on the street sees their conduct," said Ellen Presby, a Dallas plaintiff attorney specializing in pharmaceutical cases.

Another Merck loss, she said, would signal plaintiffs and lawyers that "their cases are winnable and therefore worthy of substantial settlement amounts" before a trial.

Having the trial in Merck's home territory could help the company, a major employer in New Jersey, said Carl Tobias, a professor specializing in product liability cases at University of Richmond School of Law.

"Jurors may know people who work for one of the big pharmaceutical companies" in New Jersey, he said.

David A. Logan, a dean and professor specializing in product liability at Roger Williams University School of Law in Bristol, R.I., said jury selection will be critical for Merck because the Texas verdict may be in jurors' minds.

However, he said the ethnically diverse, mostly lower- and middle-class population of Atlantic County from which the jury will be chosen is likely to have the same feeling about Merck's conduct as the Texas jury.

"It will be tough for Merck to find a jury that is sympathetic," Logan said.

Humeston, though, is a plaintiff likely to find sympathy with the jury. He earned two Purple Hearts during the Vietnam War, one for a shrapnel wound to the knee that still causes pain -- the reason his doctor switched him to Vioxx in 2001, Seeger said.

A former union official with a wife and five grown children, Humeston had planned to eventually move from Boise to a rural area, but now is afraid to be far from his doctors and hospital. He must take multiple heart medicines and stick to a restricted diet for the rest of his life, Seeger said.

"He was really looking forward to his retirement years, and Vioxx has taken a lot of that away," Seeger said.