Next Vioxx trial convenes Monday

The next federal Vioxx trial, which opens in federal court here on Monday, focuses on a man who began taking the painkiller after its label said that it could increase the risk of heart attacks.

But Robert Garry Smith, 56, said he didn’t realize the drug, once a blockbuster for Merck & Co., might have brought on his February 2003 heart attack until he saw a lawyer’s television advertisement in 2005.

“I was a perfectly healthy man until I took Vioxx and I had a heart attack,” Smith, a maintenance supervisor at a chemical plant in the Cincinnati suburb of Covington, Ky., said in a pretrial deposition.

The other nine plaintiffs whose cases have been heard so far in state and federal courts all began taking Vioxx before April 2002, when Merck added information in the label’s “precautions” section to say that using the drug could increase the risk of heart attacks.

The questions of whether that information should have been in the stronger “warnings” section, and whether Merck should have added it two years earlier, have played major parts in those trials.

About 16,000 Vioxx lawsuits have been filed in state and federal courts, and Merck has said it wants each case heard on its own. However, U.S. District Judge Eldon Fallon has said he wants to work out a global settlement for the 5,700 federal Vioxx cases on his docket after hearing just five of them.

After the first verdict came in, Fallon had lawyers for the plaintiffs and for Merck each choose two other cases for early trial in his court. Smith’s case is the second of this group of four, and the first that was chosen by Merck.

Seven other cases have been heard in state courts in Texas, New Jersey and California. Merck has won five cases and lost four overall, with one victory and one defeat before Fallon.

However, a New Jersey judge overturned an early Merck victory in state court, saying fresh evidence warranted a new trial. It was not clear whether the new evidence would affect the federal court verdict for Merck.

In the second case heard by Fallon, Gerald Barnett was a plaintiffs’ poster boy: a trim, fit man who had passed FBI physicals for 27 years and continued to watch his diet and to exercise daily after retiring.

As Barnett’s attorney pointed out repeatedly, he was considered to have a 2 percent chance of a heart attack until he had one after taking Vioxx for 2½ years. His doctor testified that if he had known about the drug’s dangers, he would have taken Barnett off the drug.

Jurors found Merck liable in that case and ordered the company to pay $51 million, though Fallon has ordered a new trial on damages.

Smith, Merck’s choice for an early trial, is 6 feet tall and 255 pounds — clinically obese by accepted medical standards. He never drank or smoked, according to his plaintiff’s profile, but other pretrial filings indicate his family did have a history of cardiovascular problems.

Smith also took Vioxx for a relatively short time. Because he started six months after the heart attack “precaution” was added to the label, Merck tried to get Fallon to throw out allegations Merck dragged its feet about adding the information. Fallon rejected that request.

Smith, who has worked at an Interplastic Corp. plant since 1987, was taking Vioxx for pain from a knee injured in a softball game in 1998. He had taken other painkillers until October 2002, when the knee was operated on.

Lawyers for the plaintiffs accused Merck late Thursday of trying to sweeten the jury pool with an ad campaign aimed at making people think well of the company.

“Merck is going around the back door, hoping to get folks to forget about this killer drug and, instead, think a bunch of nice warm thoughts about the company that manufactures it,” a news release quoted steering committee spokesman Russ Herman as saying.

Asked why attorneys hadn’t asked Fallon to stop the campaign, Herman declined to say more than was in the news release.

Merck said its advertising was “part a national program, designed to increase awareness of the company’s extraordinary contributions in improving the health of people worldwide. The ad series running now was first submitted to the FDA more than two years ago and is not connected to any litigation.”

A judge would be unlikely to order the ads out of newspapers and off the air, said Howard Erichson, a law professor at Seton Hall University. “Companies have a right to speak, including advertising and including image advertising,” he said.

Besides, he noted, potential members of the jury pool already have been exposed to attorneys’ ads.

“From plaintiffs’ lawyers ads, the public hears, ‘If you’ve taken this drug, call your doctor and call us to be your lawyers,” Erichson said. “They get one image of the litigation.

“And from the company they see the image advertising, hear about what a great company it is, and get a different image,” Erichson said. “I think, to a great extent, those wash out.”