Next Vioxx Suit Could Set Tone For Future Cases

The second Vioxx-related lawsuit to reach trial begins next week in Atlantic City, in a case that may have far-reaching implications for thousands of similar suits filed in New Jersey.

Merck & Co. (MRK) was dealt a resounding defeat last month when a Texas jury awarded $253.5 million to the family of Robert Ernst, who died in 2001 after taking Merck’s painkiller, Vioxx, for eight months.

In the latest case, Frederick “Mike” Humeston suffered a heart attack after taking Vioxx for two months to alleviate knee pain from a injury suffered during the Vietnam War.

The Humeston case will be closely watched by plaintiffs attorneys and industry executives because half of the nearly 5,000 Vioxx lawsuits are filed in Merck’s home state of New Jersey.

“The case has special significance because so many of these Vioxx cases are filed here and so many people will be watching what happens,” said Howard Erichson, a professor at Seton Hall University School of Law.

Plaintiffs often file lawsuits in companies’ home states because it prevents defendants from attempting to move the suits to federal courts, which are perceived to be more business-friendly than some state courts.

Jury selection is set to begin in Atlantic City on Sept. 12, and opening arguments could begin as early as Sept. 14. The trial is expected to take four to six weeks.

Humeston’s lawyers contend that the Boise, Idaho, resident did not have heart problems before taking Vioxx. Merck lawyers say Humeston did not take Vioxx for long enough to cause heart problems and that he had cardiac risk factors such as age and obesity.

“Vioxx just didn’t cause Mr. Humeston’s heart attack,” said Jim Fitzpatrick, a Merck lawyer.

Merck pulled Vioxx off the market last year after research showed the painkiller doubled the risk of heart attack and stroke after 18 months of continual use.

Lawyers for Humeston couldn’t immediately be reached for comment.

Legal experts cautioned that the whopping verdict against Merck in Texas doesn’t necessarily mean that juries in other states will be as generous. Even in New Jersey, which is widely perceived as a consumer-friendly state, the jury verdicts are never certain, they said.

Trent Miracle, a plaintiffs attorney who has filed Vioxx suits against Merck, said the outcome of the Humeston case may be a better indicator of Merck’s future liability than the Ernst case. Ernst suffered from cardiac arrhythmia, a condition not scientifically linked to Vioxx. Most plaintiffs are more likely to have suffered heart attacks or strokes rather than arrhythmia, he said.

“If Merck loses on this trial than they’ve got a lot more to worry about than they did in Texas because this is the kind of case they will face in the future,” Miracle said.

Howard Latin, a professor at Rutgers School of Law – Newark, said Merck likely will face some of the same evidence in Atlantic City that hurt it in Texas – particularly internal documents that Ernst’s lawyers said showed that the company knew Vioxx caused health problems long before they were disclosed to the public.

“Merck is going to have a really tough time based on evidence in the Texas case,” Latin said.

Fitzpatrick said Merck will show that it carefully studied Vioxx’ side effects and promptly disclosed them.

“We are prepared to address whatever internal documents have been brought up at trial,” Fitzpatrick said.