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Big Win For Merck In Vioxx Case

Merck & Co. won a major victory in the battle over its Vioxx painkiller Thursday when a New Jersey state jury found that the U.S. drugmaker properly warned consumers about the risks of the medication. The finding means Merck won't be held liable for the 2001 heart attack suffered by a man taking Vioxx.

After deliberating for less than eight hours over three days, the jury cleared Merck of allegations it failed to warn consumers about the drug's risks and engaged in "unconscionable commercial practices" in marketing it to doctors and their patients.

It is the first win in two cases for the New Jersey drug manufacturer. They are appealing a multimillion dollar jury award in a wrongful death case in Texas. Damages there will be cut to about one-tenth of the jury's $253 million award due to that state's caps on punitive damages.

Much of the seven-week trial, eagerly watched by lawyers and plaintiffs from around the U.S., relied on the testimony of medical experts. Witnesses for Merck testified the company believed Vioxx was safe for the heart before the drug was pulled from the market a year ago after a study showed it doubled risk of heart attacks and strokes when taken for at least 18 months.

The next of some 6,400 civil cases that have been filed is expected to be heard next month in Houston, reports David Madden of CBS radio station KYW in Philadelphia.

Other lawsuits have been filed in Canada, Europe, Brazil, Australia and Israel.

Merck has said it plans to fight the product liability suits one by one.

Members of Merck's legal team, some with tears in their eyes, hugged each other after the New Jersey verdict.

"I feel pretty good," said lead counsel Diane Sullivan. "I'm proud of the folks at Merck."

Vioxx was launched in the United States in 1999 and has been marketed in more than 80 countries.

The Texas and New Jersey cases have drawn attention from pharmaceutical companies, lawyers, consumers and stock analysts who are trying to determine what lies ahead for Merck. The company's stock rose 7.2 percent, or $2.04, to $30.45 in morning trading after the verdict.

The New Jersey verdict capped a trial centering on Frederick "Mike" Humeston, 60, of Boise, Idaho, who was stricken two months after he began taking the drug to ease pain from a Vietnam war knee injury.

Merck's lawyers appeared to be fighting a losing battle, repeatedly clashing with Superior Court Judge Carol E. Higbee, who denied key motion requests by them and threw out the testimony of Merck's first witness on procedural grounds.

On five different occasions, Merck asked her to declare a mistrial. Each time, she refused.

In the end, that turned out to be a blessing — and a much-needed one — for Merck, which pulled Vioxx off the market last year after a study showed it increased the risk of heart attacks and strokes after 18 months' use.

The six-woman, three-man jury concluded that Merck adequately disclosed information about the drug's risks and could not be held accountable for Humeston's heart attack.

Humeston's lawyers painted a picture of the two-time Purple Heart winner as a victim of a greedy drug company that put profits before patients, rushing Vioxx to market in an unsuccessful bid to beat rival Celebrex onto drugstore shelves.

About 20 million people took Vioxx after it hit the market in 1999, embracing it for its effectiveness in relieving pain while sparing them the upset stomachs, ulcers and other gastric problems associated with some other analgesics.

At its peak, Vioxx was a $2.5 billion-a-year blockbuster.

It worked for Humeston, alleviating pain in his left knee, which sustained shrapnel injuries during his U.S. Marine Corps service in Vietnam. But on Sept. 18, 2001, Humeston took two Vioxx pills after work and within hours suffered a mild heart attack.

His doctors blamed it on Vioxx, saying Humeston — a hiker and former mountain guide — had clear arteries and no history of heart disease. He wouldn't have taken it had he known about the heart attack risk, lawyer Chris Seeger told jurors.

Merck repeatedly reminded jurors that the U.S. Food and Drug Administration had approved it as safe and effective on four occasions for use against different types of pain, the last a month before Merck recalled it.

The company's lawyers cited Humeston's elevated blood pressure, weight and stress from an ongoing dispute he was having with his U.S. Postal Service bosses, saying they were to blame for his heart attack, not Vioxx.

The night before the heart attack, Humeston was called by his personal physician in response to an office visit by Postal Service fraud investigators in which they showed him a secretly recorded videotape of Humeston working on a car at his home.

Merck's expert cardiologist testified that that call was the "absolute trigger" for the heart attack.

While Humeston made for a sympathetic plaintiff, he also was a relatively healthy one, appearing in court for nearly every day of testimony and taking the stand for one day.

In the Texas case, the victim was a Wal-Mart produce manager who died after taking Vioxx; his widow was the plaintiff.

Merck's lawyers also told jurors there was no scientific link between short-term Vioxx use and heart attacks.

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