Merck faces retrial, grieving sister in Vioxx trial

(2007-01-19)
By Jon Hurdle

PHILADELPHIA (Reuters) - Merck & Co. faces a woman who blames its withdrawn pain drug Vioxx for her brother's death and the retrial of a case it had previously won in a product liability trial set to begin in Atlantic City, New Jersey on Monday.

As has been its strategy in prior Vioxx trials, Merck will argue that the plaintiffs had serious health problems that caused their heart attacks, not the medicine that it pulled from the market in 2004 after a study showed it doubled the risk of heart attack in those who took it for at least 18 months.

Company lawyers will ask the jury to focus on the plaintiffs' poor health and hope their evidence is strong enough to overcome sympathy for a grieving relative, who claims that Vioxx caused her brother's fatal heart attack at the age of 44.

Brian Hermans from Waupaca, Wisconsin died in 2002 after taking Vioxx for 19 months, according to the case brought by his sister, Kathleen Hermans Messerschmidt.

The other plaintiff in the consolidated trial is Frederick Humeston, an Idaho postal worker who blames Vioxx for his 2001 heart attack but lost to Merck in November of 2005. He was a short-term Vioxx user.

That case is being retried after New Jersey Superior Court Judge Carol Higbee threw out the jury verdict because she said Merck had excluded some heart attack data from a study that was presented as evidence during Humeston's first trial.

"Both of these men unfortunately had the medical problems that cause people to have heart attacks or sudden cardiac death, regardless of whether they have been taking Vioxx," Hope Freiwald, outside counsel for Merck, said in a statement.

"Plaintiffs will have a difficult time proving that it was Vioxx and not each man's long-standing medical problems that caused these heart events," she said.

Plaintiffs allege that Merck ignored signs that Vioxx was unsafe long before it pulled the drug and that it hid the risks to protect profits from the once $2.5 billion a year medicine.

Merck faces more than 27,000 Vioxx lawsuits. It has insisted it will fight each on a case by case basis rather than submit to a large-scale settlement deal.

In trials that have reached a jury verdict so far, Merck has won nine and lost four, including the Humeston win that was thrown out.

John Brenner, an expert in pharmaceutical mass torts with McCarter & English in Newark, New Jersey, said he expects Merck will prevail in the Humeston retrial, saying inclusion of the new heart-attack data should not alter the outcome because it is not statistically significant.

Hermans' sister is being represented by Mark Lanier, who in 2005 won a $253 million award for the widow of a Texas Vioxx user. Humeston is again being represented by Christopher Seeger.