In its first victory in federal court over the once popular painkiller Vioxx, a jury in New Orleans ruled that Merck & Co. was not responsible for the death of a 53-year-old Florida man who had a heart attack after taking the drug for less than a month.
The victory Feb. 17 was the company’s second in court regarding Vioxx. Merck argued that plaintiff lawyers never proved any link between Vioxx and the heart attack Richard “Dickey” Irvin suffered in 2001. Merck’s lawyers contended Irvin’s age, gender and diet all put him at risk for heart attacks.
Merck won a state case in New Jersey last year, while it lost one in Texas.
It was also the second time jurors heard the case brought by Irvin’s family. In Houston, where the case was heard in November and December because of damage from Hurricane Katrina, jurors were unable to reach a verdict.
Irvin’s widow, Evelyn Irvin Plunkett; the youngest of their three daughters, Ashley Irvin; and their only son, Richard Irvin III, all testified that Irvin’s health had been excellent up to his heart attack.
Plunkett left the courtroom in tears without talking to reporters. “Obviously the family is very upset,” said her attorney, Andy Birchfield.
Birchfield said Judge Eldon Fallon’s ruling shortly before the trial that two of their experts, a cardiologist and a pathologist. could not testify that Vioxx was to blame for Irvin’s heart attack. They were experts in their fields, but not about Vioxx, the judge ruled.
Birchfield said no decision had been made about whether to appeal.
Phil Beck, a lawyer for Merck, said the verdict shows the jury found that Merck scientists “lived up to their legal and ethical responsibilities” when manufacturing and marketing Vioxx and making the decision to take Vioxx off the market.
Observers said the verdict was a clear victory for Merck. But the company faces more formidable cases this year with plaintiffs who took Vioxx for 18 months or longer. Merck removed the drug from the market after a study showed it doubled patients’ risk of heart attacks and strokes after 18 months.
So far, about 9,600 cases related to Vioxx have been filed. Analysts have estimated Merck’s liability could reach $50 billion. So far, the company has set aside almost $1 billion for legal fees. Merck senior vice president and general counsel Kenneth Frazier said the company intends to try each case individually.
Frazier said the study that caused Merck to withdraw Vioxx may give plaintiff lawyers data to use in their cases, but they still face the burden of proving that the drug was a cause of the heart attack or stroke. He said heart attacks are common and have many causes, including high blood pressure.
Plaintiff lawyers had been buoyed by the prospect of new evidence that showed Merck failed to disclose information about three additional heart attacks suffered by patients in a study known as VIGOR when it was published by the New England Journal of Medicine. The additional heart attacks were disclosed to the U.S. Food and Drug Administration.
The case could be the first indication of outcomes in federal court, generally seen as more disciplined and friendly to businesses than state courts.
Another case is going on in state court in Texas.
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