STEVE INSKEEP, host:
Here's some more mixed news for the makers of Vioxx.
A jury in New Jersey yesterday awarded four and a half million dollars to a plaintiff who suffered a heart attack. He'd been taking Vioxx for four years. But, in a split verdict, the jury decided the heart attack of a second man whose case was tried simultaneously was not caused by Vioxx.
NPR's Snigdha Prakash reports.
SNIGDHA PRAKASH reporting:
Millions of Americans took Vioxx from 1999 to 2004, when Merck withdrew the painkiller. A study had shown that Vioxx doubled the risks of heart attacks. Merck now faces close to 10,000 Vioxx product-liability cases--only four have been tried, and these early cases are seen as a test of each side's strength.
Merck has successfully argued in pervious cases that plaintiffs' heart problems were caused not by Vioxx, but by other risk factors such as being overweight or having clogged arteries.
Law professor Howard Erichson, of Seton Law School, says in the case of the winning plaintiff yesterday, 77-year-old John McDarby, plaintiffs were able to use Merck's defense to their advantage by saying:
Professor HOWARD ERICHSON (law, Seton Hall Law School): Here we've got this individual who was old, who had diabetes, who had a sedentary lifestyle. That's precisely the person who ought not to have been taking Vioxx, and who ought to have been warned of its dangers.
PRAKASH: McDarby's case, and that of 60-year-old Thomas Cona, were being watched closely, because they're the first so-called long-term use cases to come to trial. That's the term used to describe cases in which plaintiffs took the drug for ore than 18 months. Merck says that's how long it takes for Vioxx to raise the risk of heart problems. McDarby used Vioxx for four years, and Cona says he used it for 22 months.
Until yesterday, the score in the Vioxx litigation was two-to-one: two for Merck, and one for the plaintiffs. Merck says it's going to take each of the 10,000 cases to court. No one really believes that. Analysts and legal observers say Merck will settle. They say plaintiffs and Merck are using the early verdicts to decide how much to settle for, and when.
Seton Hall Law Professor Howard Erichson said yesterday's verdict didn't send either side a clear message.
Professor ERICHSON: On the one had it tends to put more pressure on Merck, because it is one more finding that Merck failed to warn and engaged in, in consumer fraud. But on the other hand, the fact that the verdicts were split tends to justify Merck's position that each of these cases has to be approached individually.
PRAKASH: Analyst Roberto Kukahe(ph), of JP Morgan and Company, agrees. He says yesterday's split verdict probably means it'll take longer to bring Merck to the settlement table.
But, he says yesterday's verdict carries a message for an entirely different kind of lawsuit Merck faces in New Jersey: a national class action suit from non-governmental third-party insurers, like unions, who say they wouldn't have paid for expensive Vioxx prescriptions if they'd known Vioxx was unsafe.
Mr. ROBERTO KUKAHE (analyst, JP Morgan and Company): It's certainly a reason for concern, because under a similar consumer fraud claim, the jury did find Merck liable. Merck is appealing the class action designation, but if the class action designation stands, they will be under a lot of pressure to settle since there will be a lot of money at stake in that claim.
PRAKASH: As much as $30 billion dollars may be involved.
Today in court, lawyer Mark Lanier will be arguing that the winning plaintiff, John McDarby, deserves big punitive damages in addition to the four and a half million dollars he and his wife were awarded yesterday.
Last summer, in Texas, in the first Vioxx case to go to the trial, Lanier persuaded a jury to award his client a quarter of a billion dollars in such damages.
Snigdha Prakash, NPR News, Washington. Transcript provided by NPR, Copyright NPR.
