Merck Not at Fault in California Vioxx Trial

A California jury in the first trial in the state related to the COX-2 inhibitor Vioxx on Wednesday found that the medication did not cause a nonfatal heart attack experienced by 71-year-old plaintiff Stewart Grossberg, who had taken the medication intermittently over several years, the AP/Hartford Courant reports (Veiga, AP/Hartford Courant, 8/3).

Merck, which withdrew Vioxx from the market in September 2004 over safety concerns, faces more than 16,000 lawsuits related to the medication. In the latest case, heard in Los Angeles Superior Court, Grossberg alleged that Vioxx caused him to experience a nonfatal heart attack in September 2001, more than two years after he began to take the medication (California Healthline, 6/29).

Plaintiff attorneys argued that Merck was aware of the cardiovascular risks of Vioxx and failed to inform physicians about those risks (Bloomberg/Chicago Tribune, 8/3).

According to Merck attorneys, Vioxx had no role in the heart attack that Grossberg experienced. They argued that Grossberg had a number of risk factors for a heart attack -- such as a family history of heart disease, high cholesterol, unhealthy dietary and exercise habits and a history of smoking (Veiga, AP/Contra Costa Times, 8/2).

The 12-member jury, which deliberated for about five hours, found that Vioxx did not cause the heart attack experienced by Grossberg and that Merck was not negligent and did not conceal information about the cardiovascular risks of the medication (AP/Hartford Courant, 8/3). According to the jury, Vioxx had knowable cardiovascular risks, but the risks did not pose substantial danger to patients.

Merck to date has won five Vioxx trials and lost three.

Kenneth Frazier, general counsel for Merck, said in a statement, "Today's outcome demonstrates, again, why we will defend these cases on a case-by-case basis."

Plaintiff attorney Jim O'Callahan said, "There were instructions given to the jury for deliberations that we didn't agree with" (Simons/Won Tesoriero, Wall Street Journal, 8/3). O'Callahan said that the jury form should have included a question about whether patients were aware of the cardiovascular risks of Vioxx.

Jury foreman Charles Sullenger said, "We didn't feel that a case was ever made that there is a connection between Vioxx and heart attacks. In the end, it simply boiled down to the burden of proof was not met in our opinion" (AP/Hartford Courant, 8/3).

The lawsuit, the first among more than 2,000 Vioxx cases filed in California to reach trial, likely will serve as a guide for future trials in the state, the AP/Contra Costa Times reports (AP/Contra Costa Times, 8/2). Legal experts said that the verdict indicates potential difficulties for plaintiffs who took Vioxx intermittently and had risk factors for a heart attack.

David Berg, founding partner of a Houston law firm, said that Los Angeles Superior Court is "notoriously favorable jurisdiction" for plaintiffs and that the verdict likely will "make the plaintiffs' lawyers lower their sights for settlement and discourage the appetite for trial" (Girion, Los Angeles Times, 8/3).

Benjamin Zipursky, a professor at Fordham Law School, said, "One of the messages that these two consecutive victories send is that juries are very receptive to the Merck argument that the drug isn't the problem with these older patients, it's their own illnesses" (AP/Hartford Courant, 8/3).

KPCC's "KPCC News" on Wednesday reported on the verdict and the implications of the California ruling for other Vioxx lawsuits (Nazario, "KPCC News," KPCC, 8/2). The complete segment is available online in RealPlayer.