N.J. Jury Awards $47.5 Million in Vioxx Heart Attack Retrial

By | March 15, 2007

Merck & Co.’s painkiller Vioxx contributed to an Idaho postal worker’s heart attack, a jury in Atlantic City has ruled, reversing the verdict in the man’s first trial and hitting Merck with a total of $47.5 million in damages.

In one of Merck’s biggest losses over the drug so far, the jurors awarded the man and his wife $20 million in compensatory damages Monday morning, then later said Merck should pay $27.5 million in punitive damages.

The verdict in the case of Frederick “Mike” Humeston, who was granted a second trial in light of new evidence, means Merck has now won nine cases and lost five in the mushrooming litigation over its former blockbuster arthritis pill.

Humeston, 61, of Boise, Idaho, suffered a heart attack in September 2001, several months before Merck — under pressure from federal regulators — put a stronger warning about the cardiovascular risks of Vioxx on the drug’s detailed package insert.

Humeston, a decorated Vietnam veteran, had taken Vioxx intermittently for knee pain from a shrapnel wound.

The five-man, three-woman jury ruled on March 2 that Merck was negligent and did not provide adequate warning about those risks before Humeston’s heart attack. That set the stage for a second phase of the trial, with the jury last week hearing evidence on whether Vioxx contributed to Humeston’s heart attack, entitling him to damages.

The jurors, after deliberating for about five hours over two days, awarded Humeston $18 million in compensatory damages for pain and suffering and gave $2 million to his wife, Mary. Then, after brief arguments over punitive damages, the jury deliberated briefly late Monday afternoon and decided to assess $27.5 million in punitive damages against Merck.

“This is why you keep fighting,” said Humeston’s lawyer, Christopher Seeger. “A little guy from Idaho took on Merck and beat them big time.”

If the verdict and damage amounts are upheld, it could be the biggest hit to Merck so far. In the only Vioxx case with a larger verdict — $51 million awarded last August to Gerald Barnett of Myrtle Beach, S.C. — U.S. District Judge Eldon E. Fallon in New Orleans ordered a new trial on the amount of damages, calling the total “grossly excessive.”

Seeger said Idaho caps on damages won’t apply to Humeston because the jury found Merck’s conduct “was intentional and reckless.”

Seeger said Humeston was floored by the verdicts. He left the courthouse soon after the punitive damages were announced to spend some time alone with his wife.

Hope Freiwald, a member of Merck’s defense team, said the company would pursue all avenues of appeal.

Humeston lost his first trial against the pharmaceutical giant in 2005, but New Jersey Superior Court Judge Carol Higbee granted him a second trial because new evidence surfaced that short-term Vioxx use could also be risky; Humeston took the drug on and off for about two months. Merck insists Vioxx didn’t increase cardiac risks until after 18 months of use, but many doctors say research disproves that.

Whitehouse Station, N.J.-based Merck pulled Vioxx from the market in September 2004 after its own research showed the drug doubled the risk of heart attack and stroke.

During the eight-week trial, Merck lawyers contended Humeston had several risk factors for heart disease, including being overweight and sedentary and having high blood pressure and cholesterol levels.

In the unusual, two-phase court proceeding in Atlantic City, jurors were initially asked to only consider Merck’s conduct in marketing and disclosing risks of Vioxx. Merck had opposed that format, saying that if jurors found Merck’s conduct negligent _ as jurors did _ they would be biased against the company in any damages phase.

“We believe the result is not supported by the evidence in this case,” Freiwald said late Monday. “We think the verdict in this case reflects the fact Merck didn’t have a chance to tell the jury the entire story before the jury formed its conclusions.”

Judge Higbee chose the two-phase arrangement to try to speed up Vioxx trials. She is overseeing all Vioxx lawsuits filed in New Jersey _ more than half of the roughly 28,000 lawsuits Merck faces. Merck has been fighting them one by one.

The same jurors ruled March 2 that Merck was not negligent in the case of a second plaintiff in the case who died of a heart attack after the stronger warning on the drug’s risks.

Merck shares fell 32 cents to close at $44.29 on the New York Stock Exchange. The shares rose 10 cents in after-hours trading.


On the Net:

Merck & Co.: http://www.merck.com

Topics New Jersey Drugs

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