The second Vioxx case to go to trial in state court ended in a big win for Merck & Co today, with the nine-person jury finding the company blameless on all four charges of misrepresenting safety risks and fraudulent marketing.
Company exonerated on all four chargesAfter listening to seven weeks of testimony, the jury deliberated for slightly more than a day before exonerating Merck on all counts. Jurors felt that Merck had adequately warned doctors about the cardiovascular risks. In posttrial comments quoted by the Wall Street Journal, jurors said that they felt that Merck had adequately warned doctors about the cardiovascular risks by use of supplementary materials, that job stress had likely contributed to plaintiff Frederick Humeston’s heart attack, and that the company had not engaged in misleading marketing practices. They were also generally unswayed by the internal company emails that have played such a large part in this story, viewing them as a normal part of the process of drug discovery and safety evaluation.Although Humeston’s attorney blamed Vioxx for his (fortunately nonfatal) heart attack, Merck attorneys presented a convincing argument that he had other risk factors, including overweight, hypertension, and job stress. In addition, he had taken Vioxx for only two months, and Merck attorneys used prescription records to question whether he was taking the drug when he had the heart attack.Merck announced early on that it would fight every Vioxx case separately in court, but expectations are that the company’s plan is to rack up a series of wins like this one to strengthen its negotiating position before next April, when settlement negotiations are likely to begin in US federal court.Verdicts on specific charges The jury in this case: Voted 8-1 that Merck did not fail to adequately warn physicians of the link between Vioxx and higher risks of heart attack and stroke, which it knew or should have known about before the plaintiff’s heart attack. Voted 9-0 that Merck did not commit consumer fraud “by using unconscionable commercial practices” when marketing Vioxx to physicians. Voted 9-0 that Merck did not “make misrepresentations that had the capacity to mislead concerning the cardiovascular risk of Vioxx” while marketing Vioxx to physicians. Voted 9-0 that Merck did not intentionally “suppress, conceal, or omit material information about an association between Vioxx” and increased risk of heart attack and stroke. (Source: Tesoriero HW, Martinez B, Davies P. Merck scores major victory in the second Vioxx trial. Wall Street Journal, November 3, 2005. Joint and Bone: Rheumawise: November 2005.)