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Vioxx retrials for Merck?
Plaintiffs: Report from medical journal may be grounds for retrial in Houston and New Jersey
December 9, 2005: 4:31 PM EST
By Aaron Smith, CNNMoney.com staff writer

NEW YORK (CNNMoney.com) - A report from a prestigious medical journal that Merck withheld information about the dangers of Vioxx could lead to new trials both in a federal case currently before the jury and in a state case won by the drug company.

In fact, The Wall Street Journal reported that plaintiff attorneys in the federal case filed for a mistrial Friday, citing data from the medical journal report that accuses Merck of withholding information about Vioxx in 2000.

Also, the attorney for the plaintiff in the state case is adding the information about the medical journal report to his ongoing appeal. Chris Seeger, the lawyer who lost a lawsuit against Merck in New Jersey in November, said he is adding the report from the medical journal to his motion for a retrial, which had he already filed with New Jersey Superior Court in Atlantic City.

"We already had the motion filed but it was based on the antics in the courtroom from the Merck lawyers," said Seeger, who represented plaintiff Frederick Humeston, who was a Vioxx patient when he suffered a non-fatal heart attack in 2001. "We are looking to add this motion [based on the medical journal report] to the request for retrial."

Jurors at the federal trial in Houston began deliberations Thursday afternoon, just before the New England Journal of Medicine reported that Merck deleted data about three heart attacks among Vioxx users before submitting analysis from one of its Vioxx studies in 2000. Merck denied the claim.

In the trial currently underway in Houston federal district court, Evelyn Plunkett of St. Augustine has sued Merck for the 2001 death of her husband, Richard Irvin. Irvin was a Vioxx patient who suffered a fatal heart attack. Jurors are scheduled to continue deliberations today and a verdict could be announced at any time.

Merck's stock price fell about 2 percent on Friday. But Robert Hazlett, analyst for Suntrust Robinson Humphrey, was not too concerned about the report from the New England Journal of Medicine.

"Any modest alterations to the Vigor study would not have changed the timing to when they removed the drug," said Hazlett, referring to the study that Merck submitted to the medical journal. "When Merck felt it had conclusive information, it acted."

What does jury know?

Did the jurors in the Houston trial see the medical journal report? Judge Eldon Fallon instructed them not to watch the news, which is a common courtroom request, but they are not sequestered and the report has been covered heavily in the media since its release Thursday.

"The jury may very well consider this," said Cooper, who added that they're not supposed to consider it, because the report was not admitted as evidence. "Twelve of the jurors don't have to read it. One of them does."

Merck was not immediately available for comment.

The New Jersey-based drug giant pulled its arthritis painkiller Vioxx, which brought in $2.5 billion in annual sales, off the market on Sept. 30, 2004 after a study showed increased risk of heart attacks in patients who took Vioxx for at least 18 months. Since that time, about 6,500 lawsuits have been filed against the company from former Vioxx patients who suffered non-fatal heart attacks and family members of patients who died.

The plaintiffs blame Vioxx for the heart attacks, but Merck has insisted that Vioxx has killed no one and has vowed to fight all cases one by one, if necessary.

The federal trial in Houston is the third Vioxx case against Merck to go to court. The first two cases were in state court. Merck lost its first trial in Angleton, Texas on Aug. 22. Plaintiff Carol Ernst, widow of former Vioxx patient Robert Ernst who died of a heart attack in 2001, was awarded $253 million by the jury. State law will cap the damages to about $26 million, according to her lawyer Mark Lanier.

Merck (down $0.55 to $29.13, Research) won its second trial against Humeston in Atlantic City, N.J. on Nov. 3. Merck's lawyers attacked Humeston's credibility during the trial.

"Chris Seeger, who lost to Merck in New Jersey, absolutely has grounds for a new trial," said Cooper.

For more on the Merck trial in Houston, click here.  Top of page

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