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Potential jurors for the product liability case Frederick Humeston versus Merck & Co. are scheduled to fill out questionnaires and are being asked to return on Tuesday for jury selection. Atlantic County Superior Court Judge Carol E. Higbee is overseeing the case.
Opening arguments are expected to occur on Wednesday.
Humeston of Boise, Idaho claims Vioxx, which he took intermittently, caused his heart attack four years ago.
"We are in this for the long haul," Kenneth Frazier, Merck’s general counsel said Friday in a teleconference with reporters and analysts. "We have the resources and the resolve to address these cases one by one over many years."
Frazier’s statement confirms the Whitehouse Station company’s resolve not to settle any cases but fight each one. This statement counters rumors and published articles that hinted Merck might be considering a settlement regarding those cases that involve patients who took Vioxx over 18 months. Merck has been named as a defendant in almost 5,000 lawsuits.
Despsite the lawsuits, Frazier said, "Merck’s future is both secure and promising." Last year, Merck voluntarily pulled Vioxx from the global marketplace after study results from its ApprovE study involving 10,000 patients showed several participants increased their risk for cardiovascular events after taking the drug for 18 months. The drug maker’s stock dropped 38 percent, cutting its market value by $30 billion. About 20 million patients worldwide took Vioxx before its removal, earning Merck $2.5 billion in sales.
At the heart of Humeston and those product liability or ERSA cases Merck will face in the next six month, is the science used to develop and manufacture Vioxx. Merck attorney Jim Fitzpatrick with Hughes Hubbard & Reed LLP said the difficulty any attorney faces is presenting scientific data to jurors who are not scientists themselves.
In the Brazoria County, Texas trial Ernst vs. Merck & Co., several jurors admitted that they did not understand the science data in the case and listened more intently to the plaintiffs attorney description of Merck officials working specifically to get the drug in the marketplace without taking greater care toward patient safety.
Merck is appealing the verdict, which awarded Robert Ernst’s widow $253 million in punitive damages. It is expected the award will be reduced.
Fitzpatrick said that Merck was very much aware of the safety factors since a number of Merck officials including the former Merck president Raymond Gilmartin’s wife was taking the drug.
Merck contends that Vioxx had nothing to do with Humeston’s heart attack that he suffered on September 18, 2001. The 60-year-old postal carrier and Vietnam veteran claims he suffered a heart attack after taking Vioxx for two months.
In a causation brief, Merck is going to argue that Vioxx had nothing to do with Humeston’s heart attack because coronary artery disease occurs silently over time with the build up cholesterol plaques in vessels supplying blood to the heart. Humeston’s medical profile shows that Humeston had a multiple preexisting risk factors - cholesterol problems, stress, borderline hypertension, obesity and did not exercise - that can contribute toward a heart attack. In the United States each year about 250,000 men in Humeston’s age group suffered cardiac problems known as atherosclerosis in at least two arteries.
Although Fitzpatrick would not go into the specifics of Merck’s defense in the Humeston case, he did say the legal team will comply with the company’s legal strategy of presenting sound and reliable evidence.
On Friday, Merck’s legal team suffered a little setback when Judge Higbee ruled she would allow television cameras in the courtroom. She rejected the company’s argument that the broadcast of the case would taint potential jury pools in future Vioxx cases to be held in Atlantic County and across the nation.
On November 28th, the first federal product liability Vioxx trial is scheduled to begin in New Orleans. Though this may change due to the aftermath the city suffered from Hurricane Katrina.
Higbee’s ruling comes as Court TV plans to prepare a gavel to gavel coverage of the trial. Other television channels expressing an interest in airing the case is CNBC, Bloomberg News and CBS. Merck plans to appeal Higbee’s ruling.
