Second Vioxx Trial to Open in N.J. as Suits Against Merck Multiply

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Beleaguered drug maker Merck & Co.’s request to postpone the next trial over its withdrawn painkiller Vioxx has been turned down by the judge presiding over the case.

Superior Court Judge Carol E. Higbee, who is overseeing nearly 2,500 Vioxx product liability cases that have been filed in New Jersey, also rejected two other Merck motions related to the upcoming trial.

Merck had urged Higbee to postpone the trial’s start for 45 days, citing a “media blitz” after the first Vioxx trial. That trial ended Aug. 19 with an Angleton, Texas, jury awarding $253.4 million to the widow of Bob Ernst. He died in 2001 after taking Vioxx for eight months. The $253.4 million award is expected to be reduced to about $26 million due to Texas caps on punitive damages.

Set to start Sept. 12 in Atlantic City, the second trial over the drug involves a 60-year-old postal worker and former Marine from Boise, Idaho. Frederick “Mike” Humeston suffered a heart attack, but survived, four years ago shortly after he began taking Vioxx for pain from old war wounds.

Merck pulled its blockbuster arthritis treatment, which had been bringing in $2.5 billion in annual revenues, from the market when its own study showed Vioxx doubled the risk of heart attack or stroke when taken for at least 18 months.

However, the first two cases to come to trial in state courts both involve plaintiffs, Ernst and Humeston, who had taken the drug for a much shorter time.

Judge Higbee ruled that the trial will start with jury selection on Sept. 12, as scheduled, according to Higbee’s court clerk, Chris Morgan.

The judge also ruled against Merck on motions to exclude marketing and promotional materials about Vioxx, and other evidence about Merck’s conduct, which the company said were not directly related to the Humeston case. Morgan said it’s possible Merck could raise those issues again during the trial.

Nearly 5,000 lawsuits

As of Aug. 15, Merck faced nearly 5,000 lawsuits alleging patients were harmed by Vioxx-nearly 600 cases more than what the company reported five weeks earlier. The total includes about 150 potential class-action suits, which could include many plaintiffs.

Other lawsuits have been filed in Canada, Europe, Brazil, Australia and Israel.

Merck officials said they will consider settling some Vioxx cases, specifically those where plaintiffs took the drug for at least 18 months and had low risks of cardiac problems.

Plaintiff lawyer Mark Lanier, who won the Ernst case, said that Merck likely will face at least 50,000 U.S. product liability suits over Vioxx, plus thousands more from patients overseas. Analysts estimate Merck’s liability over Vioxx could run from several billion dollars to as high as $50 billion , but the company has yet to set aside any reserves to cover jury awards or settlements.