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Jury Rules for Merck in Latest Vioxx Case

AP
Tuesday, 27 Mar 2007 | 11:51 AM ET

Jurors in the Midwest's first trial over the once-blockbuster painkiller Vioxx cleared the drug's maker in the 2003 deadly heart attack of a 52-year-old woman.

A Madison County court jury deliberated over two days before siding with Merck, which had argued that Patty Schwaller's weight and other health issues might have posed risks that better explain her collapse and sudden death.

Schwaller had taken Vioxx for about 20 months. Her husband claimed that Vioxx contributed to his wife's death and that Merck failed to sufficiently warn consumers that the drug increased the risk of cardiovascular problems.

The victory was Merck's 10th in 15 cases that have been tried in the mushrooming litigation over the drug Merck pulled off the market in 2004 after its research showed it increased the risk of heart attacks and strokes.

During the monthlong trial in this St. Louis suburb, where large jury awards favoring plaintiffs earned Madison County the label by some as a "judicial hellhole," Merck lawyers insisted that Patty Schwaller had several risk factors for heart disease, including obesity, diabetes, high blood pressure and a sedentary lifestyle.

The 5-foot-2 woman's weight fluctuated between 250 and 300 pounds for roughly two decades before her death, attorneys have acknowledged.

But attorneys for Schwaller's widower, Frank Schwaller, pressed that the woman had no heart attacks, strokes or symptoms of congestive heart disease before her fatal collapse, fueling their belief that Vioxx contributed to her demise.

Mikal Watts, a Schwaller attorney told jurors Monday that Merck pushed consumers like Patty Schwaller "over the cliff" by failing to adequately study Vioxx's possible side-effects on people at risk of heart disease. Watts said Merck publicly downplayed worries by outside researchers that Vioxx could put users at greater risk of heart attacks or strokes.

Top Merck executives "kept cutting the data until it told them what they wanted it to say," Watts insisted.

Watts argued that Merck put profits ahead of patient safety by allegedly rushing Vioxx to market. The drug became the company's No. 2 drug, generating more than $11 billion in sales from May 1999 through September 2004, according to regulatory filings and other information from the company, based in Whitehouse Station, N.J.

"I'm not against companies making money, but not at the expense of their patients," Watts told jurors.

But Dan Ball, an attorney for Merck, accused the Schwaller family's attorney of cherry-picking and misrepresenting Merck e-mails to "assault" the reputation of a company he said was dedicated to making lives better.

Ball said Vioxx labels in 1999 and 2002 -- well before Patty Schwaller's death -- urged caution among users with cardiovascular risks including hypertension. He urged jurors to look to Schwaller's health troubles in deciding what caused her death.

"A person with these kinds of issues sometimes can die early, tragically, and medicine doesn't have a doggone thing to do with it," Ball told jurors. "Let's try not to forget the undisputed fact that most people who took this medicine had no issues at all."

The trial has been closely watched in Madison County, which has gained national notoriety as a place where lawyers from across the country file cases involving everything from asbestos exposure to medical malpractice, hoping for big payouts.

Merck has been deluged with more than 27,000 personal injury lawsuits and another 265 potential class-action lawsuits alleging harm from Vioxx. The company has reserved $1.64 billion in its Vioxx legal defense fund, saying it plans to fight each lawsuit.

On March 12, jurors in Atlantic City, N.J., found that Vioxx contributed to an Idaho postal worker's 2001 heart attack, reversing the verdict in the man's first trial and hitting Merck with a total of $47.5 million in damages.

If the verdict and damage amounts are upheld on appeal, it could be the biggest hit to Merck so far.

In the only Vioxx case with a larger verdict -- $51 million awarded last August to Gerald Barnett of Myrtle Beach, S.C. -- U.S. District Judge Eldon E. Fallon in New Orleans ordered a new trial on damage award, calling the total "grossly excessive."

A New Jersey Supreme Court panel also is considering whether to allow health insurers and union health plans to sue Merck jointly to recover money they paid for Vioxx prescriptions -- a lawsuit potentially worth more than $15 billion. A New Jersey state judge granted that lawsuit class-action status in mid-2005, and a state appellate court ruled last year that the nationwide suit could go forward. Merck is appealing.

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