Vioxx cases not all big payoffs

by John O'Brien |
Nov. 8, 2006, 11:20am

A bottle of Vioxx

Ted Mayer

CHARLESTON - The numbers are staggering.

A 75-year-old man takes the prescription drug Vioxx for arthritis pain, has a heart attack and is awarded $13.5 million in damages. A retired FBI agent takes Vioxx for more than four years, has a heart attack and is awarded $51 million.

A woman loses her husband, a 59-year-old, Vioxx-using produce manager at Wal-Mart, after he dies from a heart attack. A Texas jury awards her $253 million.

Those are headline-making numbers.

On the other hand, attorney Ted Mayer, a partner at Hughes, Hubbard and Reed in New York, provides some numbers of his own, specifically how only four of the 20 cases against Merck, the manufacturer of Vioxx, scheduled to be brought to trial have resulted in a plaintiffs verdict.

"I don't know. I think it might surprise people," said Mayer, part of Merck's defense team. "It will surprise people who think they can file a case and magically good things will happen. Lawyers out there should take a hard look at it."

Merck has chosen to throw evidence at its current situation, not money for settlements. The prescription drug giant admitted it made a mistake when it pulled Vioxx off the shelves in 2004 after studies showed that it put users at risk for thromboembolic events like heart attack or stroke.

As of Oct. 9, the company was facing approximately 23,800 lawsuits brought on by 41,750 plaintiffs group.

On Oct. 20, Denise Nichols became one of the many West Virginia residents to file suit against Merck when she blamed it for her 2002 pulmonary embolism. Attorney Cindy Kiblinger of Charleston's James Humphreys and Associates insists that Merck put her in danger by not releasing information regarding possible side effects.

"Despite the efforts of numerous healthcare professionals, Merck managed to hide the fact that Vioxx significantly increased the risk of thromboembolic adverse events, such as heart attacks and strokes, until it recalled the drug in Sept. 2004," says the complaint, which charges Merck with fraudulent conduct, concealment and misrepresentation, negligence, products liability, fraud, breach of express and implied warranties, negligent misrepresentation and unjust enrichment.

Mayer said Merck maintains that it did not have prior knowledge of Vioxx's side effects and removed the product as soon as it found out.

"We believe very strongly that our client did the right thing and has a story to tell," he said. "They had a medicine that they believed in that could help people and continued to study in it in a responsible way.

"When they first got the evidence from the placebo control trial, they took immediate action and voluntarily withdrew it."

Vioxx had generated billions in sales for Merck before it was pulled. Some of that money is now going back in the pockets of consumers, though not as much as the headlines suggest. A judge even cut that $253 million award down to $26.1 million, since the amount exceeded the Texas' cap on punitive damages.

The two sides agreed on 20 cases to try in order to gather preliminary results for the Multi-District Litigation process in Louisiana federal court. Six returned defense verdicts, four returned plaintiffs verdicts, five were dismissed by Judge Eldon Fallon and five more were taken off the docket by plaintiffs attorneys, Mayer said.

"Plaintiffs counsel dropped them just because they couldn't come up with the basic information to support their claims," Mayer said.

Attorney Phillip Whitman claimed "prejudice on grounds that the Plaintiffs Steering Committee has refused to lend support to try this matter on June 12 (its scheduled trial date)," and also blamed the effects of Hurricane Katrina for delaying his trial preparation.

Merck's lawyers insisted the case was dropped because Ellis Diaz' heart attack was not caused by Vioxx.

Mayer adds that some 3,000 cases have been dismissed or dropped by plaintiffs counsel because there was no evidence to support their claims.

Railroad giant CSX found in July that an asbestos lawsuit brought against it contained the medical report of a doctor who supposedly practiced in Huntington but, in reality, didn't exist. Mayer said he hasn't uncovered anything that drastic in the Vioxx files, though it remains a possibility.

"It's always a concern where there are a large number of cases filed, particularly a large number filed to meet a deadline," he said. "We have to look at the cases very carefully to see if the patient even took Vioxx at all or maybe didn't have the injury that was alleged.

"We really believe in addressing these cases one-by-one. Merck is steadfast in that belief."

However, defending big business can be difficult in front of 12 middle-class jurors.

In the case of Carol Ernst, who thought she was receiving a $253 million award before it was knocked down, Mayer said emotional evidence was allowed into trial that could have swayed the jurors and the verdict is being appealed.

During the trial, the doctor who performed the autopsy testified that a blood clot she couldn't find was probably what triggered Robert Ernst's death. She did not blame Vioxx, though three plaintiffs experts did.

"I think that often -- and part of our appeal is this -- evidence was heard that the jury shouldn't have been able to hear," Mayer said. "The jury shouldn't have heard it based on the rules of evidence."

He's banking that a new jury will side with Merck, just as six out of the first 10 have. The large monetary awards that exceed state caps could lead one to believe that emotion has played a large part in some of the jurors' decisions. Ernst's award surpassed the state cap almost 10-fold.

Emotion could also help explain the difference between six cases resulting in no jury award and four cases leading to multi-million-dollar decisions.

"That's one of the reasons groups like the Chamber of Commerce are so concerned with putting limits on damages, because inflammatory evidence may not be prohibited when it should not be allowed," Mayer said. "Juries can get mad and give awards that are really disproportionate to the facts under any evidentiary look."

And that can lead to some of those staggering numbers.

"We need a fair process for both sides," Mayer said. "If the process is geared towards a decision that's based on emotion and not based on facts, then it can all go astray."

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