3-3 Vioxx tie shows pattern for Merck, plaintiffs

Merck - Cases up to 11,500

NEW YORK -- After millions of dollars in expenses and hundreds of hours of court time in six separate trials, neither Merck nor plaintiff attorneys have captured the upper hand in the litigation blizzard that followed the withdrawal of the pain medication Vioxx, experts say.

On Friday, South Texas jurors found Merck liable for the death of Leonel Garza, a 71-year-old man who suffered a heart attack after taking Vioxx for one month. That ties the score at three wins for plaintiffs and three for Merck.

Merck, which insists it will try each case and vowed to appeal the Texas verdict, disclosed this week that the lawsuits have grown to about 11,500, up from about 9,500 three months ago.

The stakes involved are staggering. Analysts estimate Merck's potential liability could reach $50 billion. In the three cases it lost, it has been ordered to pay $298.5 million, although state laws will reduce that to no more than $33.85 million.

But a global settlement seems unlikely at most, and Merck's defense lawyers have scored enough points at the first trials to make the company optimistic its strategy is correct and the final tab will be considerably less.

"I don't think we've seen anything to push Merck in the direction of settlement. They are fighting well and telling a credible story," said Ben Zipursky, a professor at Fordham Law School in New York.

Strategy

What has emerged from the trials so far is the basic footprint of the two sides' approaches:

* Plaintiff lawyers have assembled a dossier of company e-mail, studies and sales materials they hope will prove to jurors that Merck put profits before patients by marketing a painkiller it knew was dangerous.

* Merck lawyers counter with experts to back the assertion that the company acted responsibly by pulling Vioxx in 2004. That came after a study showed the risks of heart attacks and strokes doubled for patients using the drug for more than 18 months. They also have tried to plant doubt about whether health problems such as high cholesterol or excess weight were the true cause of Vioxx users' ailments.

Still, a New Jersey jury awarded $13.5 million in compensatory and punitive damages in March to a man who suffered a heart attack while taking Vioxx, even though he had numerous preexisting health problems. But another plaintiff at the same trial, who said he took Vioxx more than 18 months but couldn't prove it, was awarded only $45 as compensation for the cost of his Vioxx.

Twelve more trials are scheduled for the rest of this year, including several where the plaintiffs took Vioxx more than 18 months, their lawyers said.

Ted Mayer, Merck's lead outside lawyer, said a claim of taking Vioxx for 18 months doesn't equal proof. But a series of losses in those trials could push Merck to think about settling suits brought by long-term users, said Howard Erichson, a professor at Seton Hall Law School.

Problem with settling

Deciding how and when to settle cases is difficult because an agreement doesn't always mean the litigation is over, experts said. Settlement talks also often ignite a stampede to file cases.

Consider the case of drug maker Wyeth. In 1999, it announced it was setting aside $3.75 billion for a global settlement for the diet drug combination fen-phen. By the fourth quarter of 2004, the amount it had reserved soared to $21.1 billion because Wyeth underestimated the number of suits. It has spent all but $5.7 billion of that money.

Merck's stock has been increasing in recent months but is still 23 percent below where it was before the Vioxx withdrawal.