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Merck Gets a Double Dose of Bad News in Vioxx Cases

Merck & Co. suffered two setbacks Thursday in litigation over its withdrawn painkiller Vioxx, with a Newport Beach product-safety lawyer playing a lead role in one of those losses.

In New Orleans, a federal jury ordered Merck to pay $51 million to a health-conscious retired FBI agent who suffered a heart attack at age 58 after taking the blockbuster drug for about 2 1/2 years.

In New Jersey, a state Superior Court judge overturned a November verdict in favor of Merck and ordered a new trial, after finding that the company had withheld information that showed heart attacks could occur with the use of Vioxx for fewer than 18 months.

The jury in the New Orleans case found that Merck had “knowingly misrepresented or failed to disclose” information about the drug’s risks to physicians who treated Gerald Barnett.

That victory, trial lawyers said, is vintage Mark P. Robinson Jr., the Orange County lawyer who represented the former FBI agent. Although it was Robinson’s first Vioxx trial, those who have followed his career were not surprised he won it.

“He is legendary,” said Trent Miracle, a product-safety lawyer and partner at Simmons Hanly Conroy in southern Illinois.

Merck called the verdict and the amount of damages “totally uncalled for” and said it would appeal.

Its shares fell $2.35, or 6%, to $38.83. The company faces more than 16,000 Vioxx lawsuits in state and federal courts.

The company has won three state court Vioxx trials, excluding the verdict thrown out Thursday, in New Jersey and California. It has lost four.

Merck’s loss Thursday was the first in federal court, the company’s preferred litigation venue. Merck won an earlier federal court trial, and another ended in mistrial after one juror reportedly refused to vote with the other eight in favor of the company.

The company’s loss Thursday may have come as a surprise to some, said Peter Bicks, a partner at Orrick, Herrington & Sutcliffe in New York who has been tracking the litigation.

“Given the strength of Merck’s trial team and the recent string of victories, I think most people were anticipating a Merck win,” he said.

Members of the plaintiffs’ bar were eager for Robinson to take a run at Merck, Miracle said.

“We were pretty happy to see that he was going to be getting the next crack at one of these cases in the federal court,” he said. “He is one of these guys who can really captivate a jury.”

Robinson — whose Robinson, Calcagnie & Robinson firm has many Vioxx suits — said he studied earlier trials and learned even from the ones that plaintiffs lost.

“As people try these cases, you figure out how to do it,” Robinson said. “I’m hoping other people can now use what I did and my approach to their benefit.”

Trial lawyers watch Robinson because of the string of jumbo jury awards he has won, including a $4.9-billion verdict against General Motors Corp. in 1999.

But the 61-year-old Los Angeles native is perhaps best known for helping to win a $127-million verdict for a boy badly burned when the gas tank of the Ford Pinto he was riding in exploded.

Jurors were outraged in the 1978 trial to learn that Ford Motor Co. was aware that another gas tank design would have been safer but rejected it over cost. Ford’s cost-benefit analysis, discovered in that case, demonstrated to Robinson the power of the “smoking gun” document to convince jurors that a company put profit over people’s lives.

Almost four decades later, Robinson’s argument on Merck was much the same. Merck sought expedited government approval to market Vioxx for arthritis pain, he argued, even though it knew the drug could cause far worse problems — heart attacks and strokes.

In closing arguments Wednesday, Merck’s lawyer told jurors that Barnett’s age and gender — two factors that can’t be controlled — were what put him at risk of a heart attack.

But Robinson told jurors that his 62-year-old client, who underwent a quintuple bypass after his heart attack, was careful to keep his risks as low as possible with daily exercise, a healthful diet and drugs to control his cholesterol.

He told the jury that the problem was Vioxx, which Barnett took for 31 months before his heart attack in July 2002. He continued to take the painkiller for two more years, stopping one week before Merck pulled it from the market in September 2004 after a study showed it increased the risk of heart attacks and strokes.

The jury found that Merck “acted in wanton, malicious, willful or reckless disregard for the plaintiff’s rights,” and, in addition to $50 million in compensation, included $1 million in punitive damages in the verdict.

Deborah Hensler, a Stanford University law professor who tracks mass torts, said that in some cases, “a really good trial lawyer can make a difference.”

That, she said, means “connecting the dots and telling the jury a story about what happened that they can support with their witnesses and their evidence.”

Documents and storytelling are Robinson’s stock in trade, say those who know him.

Robinson said he reached out to lawyers across the country before going to trial against Merck to get his hands on every document he could.

“Mark accumulated every inch/ounce of discovery there is available in the country,” said Jeoffrey Robinson, his younger brother and partner. “There is no one who will do more and go to every length of the Earth to obtain everything that is out there.”

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