ATLANTIC CITY, April 3 — After a month of testimony, the fourth Vioxx-related personal injury trial ended Monday with well-worn closing arguments from lawyers for Merck and for two men who say the company's drug Vioxx caused their heart attacks.
Less than two years after Merck withdrew Vioxx from the market, and eight months after the first Vioxx case reached a verdict, litigation over the drug has settled into something of a groove.
In this case, as in the earlier suits, lawyers for Merck insisted that the company fully disclosed Vioxx's potential dangers to regulators and the public. Lawyers for the plaintiffs pointed to documents and e-mail messages showing that company scientists were concerned about Vioxx's risks long before Merck withdrew the drug from the market in September 2004.
A jury of six women and two men will begin deliberations on Tuesday, after instructions from Judge Carol E. Higbee of Atlantic County Superior Court. Judge Higbee is overseeing about 4,500 suits filed in New Jersey state courts against Merck, which is based in Whitehouse Station, N.J.
The plaintiffs, John McDarby, 77, and Thomas Cona, 60, say that they suffered heart attacks as a result of taking Vioxx. Merck counters that both men had myriad other risk factors, including a history of smoking and blocked arteries. Jurors will decide the cases independently.
People on both sides say that Mr. McDarby has a better chance of winning his suit that Mr. Cona, who says that he took Vioxx for 22 months straight. Records indicate Mr. Cona did not receive prescriptions for that full period, but he says he was given samples by doctors for the time not covered by prescriptions. While this trial has attracted less attention than earlier cases, Wall Street analysts are carefully watching it to see if Merck can continue its winning streak in Vioxx cases. After a defeat last August in the first lawsuit to reach trial, Merck won two subsequent suits easily.
Merck's stock, since falling to a nine-year low of $25.50 in October 2005, has risen almost 40 percent, as investors grow more confident that its Vioxx-related liabilities might total only a few billion dollars — instead of the $50 billion or more that some analysts had predicted last fall. Merck closed Monday at $35.41, up 18 cents, or 0.5 percent.
For plaintiffs, this case is especially important because both Mr. McDarby and Mr. Cona claim they took Vioxx for more than 18 months. In the previous trials, testimony that the plaintiffs took the drug for shorter periods was a crucial element in Merck's defense
In addition, the lead plaintiffs' lawyer is W. Mark Lanier, who defeated Merck last year in the first Vioxx lawsuit to reach a jury. In that case, a Texas jury awarded $253 million to the widow of a man who died in 2001 after taking Vioxx for seven months. Texas law will automatically reduce the verdict to $26.1 million.
Merck stopped selling Vioxx in 2004 after a clinical trial showed that the drug caused more heart attacks and strokes than a placebo, but Merck says that the study did not reveal a difference in danger for patients who took the drug for less than 18 months. Plaintiffs' lawyers say that other studies show that Vioxx is dangerous even in short-term use. But both sides agree that plaintiffs have a better chance of winning cases if they have used the drug for more than 18 months.
Still, whatever happens in this case, both sides expect many more trials through 2006 and 2007. Merck insists that it will defend every suit, and investors appear comfortable with that strategy after the company's last two victories. Merck's aggressive attitude has discouraged plaintiffs' lawyers from bringing tens of thousands of weak cases that could drive up the cost of a settlement if one is ultimately reached.
That strategy has also had the effect of indefinitely delaying any payments the company might eventually have to make to plaintiffs. The company plans to appeal the case it lost in Texas. But with tens — perhaps hundreds — of millions of dollars invested in preparing cases nationwide, Mr. Lanier and other plaintiffs lawyers say they will continue to force Merck to defend itself in court.
In her closing argument, Christy Jones, Merck's lead lawyer, told jurors that Merck had properly researched Vioxx's potential heart risks. After a clinical trial in 2001 showed that the number of heart attacks among patients taking Vioxx was five times that among those taking naproxen, an older pain reliever, Merck disclosed the trial's findings to both doctors and the Food and Drug Administration, Ms. Jones said.
"No question that information was out there," said Ms. Jones, a Mississippi native who spoke quietly and precisely throughout her closing and did not try to hide her accent from the New Jersey jury.
Ms. Jones also argued that Mr. Cona had not proved that he took Vioxx and that his heart attack had been so mild that he had not suffered any permanent damage from it. As for Mr. McDarby, he would have been at a very high risk for a heart attack even if he had never taken Vioxx, Ms. Jones said.
Mr. Lanier brought his Texas twang, trademark humor and showmanship to his closing, telling the jury that the case should be called "Desperate Executives," a corporate version of the television show "Desperate Housewives."
Even before Merck began testing Vioxx, Mr. Lanier said, company scientists were concerned that the drug might cause heart attacks by increasing the propensity of the blood to clot. After the 2001 clinical trial, Merck tried to play down Vioxx's heart risks and delay changing Merck's warning label, he said. Playing television advertisements that Merck ran for Vioxx, Mr. Lanier urged the jury to listen for a warning of Vioxx's heart risks.
"There's no warning being given about heart problems," he said. Later, Mr. Lanier mocked Merck's witnesses, comparing one to a jukebox: "You put in your money and he'll sing any song that you want."
