A state court jury in a closely watched Vioxx product liability case began deliberating Tuesday afternoon, capping a seven-week trial in which drug manufacturer Merck & Co. was accused of knowingly misrepresenting the safety risks of its blockbuster arthritis drug.
The six-woman, three-man panel on Tuesday heard the closing argument of a lawyer for an Idaho postal worker blaming Vioxx for his heart attack. Lawyer Chris Seeger called Merck a "monster" and told jurors that their verdict will send a message about what is acceptable when marketing drugs.
The jurors got the case after Superior Court Judge Carol E. Higbee finished instructing them on the laws at issue in the case of Frederick "Mike" Humeston. Jurors will have hundreds of documents and testimony from 21 witnesses — enough to fill 5,764 pages of trial transcript — to consider.
Humeston, 60, of Boise, Idaho, took the drug for about two months before suffering a non-fatal heart attack in September 2001.
His is one of about 7,000 lawsuits brought against the Whitehouse Station-based drug company, which pulled the prescription painkiller off the market a year ago after a study showed it doubled the risk of heart attack and stroke after 18 months' use.
Last August, Merck lost the first trial over Vioxx when aof a Vioxx user. Under Texas law, that will be cut to no more than $26 million, and Merck plans to appeal.
Merck contends Humeston hadn't been using the drug long enough to be at risk, and that the company rigorously evaluated its safety before and after introducing it in May 1999. The company's lawyers argued Humeston was stricken because he was overweight, had elevated blood pressure and was under considerable job stress.
Seeger, though, said Merck had tried to divert attention from the crux of the case — that Merck misled consumers and physicians about Vioxx's safety because it needed the drug's sales, about $2.5 billion a year, to bolster revenues because other Merck drugs were about to come off patent.
"It's all smoke and mirrors," Seeger told jurors. "It's the octopus putting ink in the water."
Citing internal Merck documents, Seeger said Merck calculated a $437 million loss if the company failed to neutralize concerns about Vioxx's cardiovascular risks raised in clinical studies.
Instead of warning doctors about the risk or adding a warning to the detailed package insert, Seeger said, Merck rushed Vioxx onto shelves. He said the company was trying to get it to market before competitor Celebrex from Pfizer Inc. was introduced. Merck lost the race.
Merck's lawyers have repeatedly emphasized to jurors that the U.S. Food and Drug Administration approved Vioxx as "safe and effective" four different times, for treating different types of pain. Seeger contrasted the reliance on the FDA with internal company e-mails in which Merck's former chief scientist referred to agency staff as "bastards" and "grade D high school students."
When a clinical study of Vioxx concluded in 2000 that those taking it had five times as many heart attacks as patients taking the older anti-inflammatory drug naproxen, Merck explained the disparity by saying naproxen protects the heart instead of acknowledging that Vioxx hurts it, Seeger said.
If the company had been forthright, Humeston's doctor never would have prescribed it for him, he said.
"Think about the importance of telling this drug company that they can't market drugs this way," said Seeger.
Humeston, a two-time Purple Heart winner who took Vioxx to combat knee pain from an old war injury, said the heart attack left him a shell of his former self.
"I'm not man enough to drag my own damn bags across the airport," he told jurors when he testified Sept. 28.
Heart experts who testified on his behalf said Humeston had healthy arteries and almost none of the risk factors for heart disease when he suffered his heart attack Sept. 18, 2001 after taking two 25-milligram Vioxx tablets.
By John Curran