updated 10/30/2005 4:48:42 PM ET 2005-10-30T21:48:42

For Merck & Co., another courtroom defeat over its painkiller Vioxx would be a prescription for trouble.

The pharmaceutical company, whose fortunes soared partly on the strength of the drug’s popularity, is nervously awaiting the outcome of the second Vioxx product liability case to go to trial.

A jury is expected to decide this week whether the Whitehouse Station, N.J.-based company is liable for the heart attack suffered by Idaho postal worker Frederick “Mike” Humeston.

Closing arguments are scheduled for Monday, with jurors likely to get the case either Monday or Tuesday.

Their ultimate decision carries high stakes for Merck, in part because the first product liability trial over Vioxx ended with a $253 million verdict against the company. With about 7,000 Vioxx lawsuits filed already, another loss could open the floodgates for more litigation.

“The more Merck loses, the more people will feel emboldened to file (lawsuits) against them,” said Jason Napodano, pharmaceutical industry stock analyst for Zacks Investment Research. “We’ve already seen Merck lose the first case ... This case is even more important because the patient was not on Vioxx very long and the patient didn’t die.”

The drug, which has been linked to heart attacks and strokes after 18 months’ use, was voluntarily withdrawn from the market in September 2004.

N.J. trial focuses on research
Unlike the first case, which was tried in Texas, the New Jersey trial has focused more on Merck’s scientific research than on its marketing practices. Several Merck witnesses testified that Vioxx use in the short term — Humeston took it for only two months — posed no risk of cardiovascular complications.

Merck contends that Humeston’s blood pressure, weight and stress combined to trigger the heart attack, and that the company never hid data on clinical studies of Vioxx from federal regulators.

The U.S. Food and Drug Administration approved Vioxx as “safe and effective” for treating different types of pain four separate times over the years, the last time a month before Merck pulled it off the market, Merck has said.

Humeston’s lawyers and expert witnesses, meanwhile, said the clinical studies gave warning signs about its risk and that the company failed to adequately investigate them before introducing Vioxx in 1999.

‘There will be appeals’
Whatever verdict is reached, it won’t end the Vioxx liability saga, according to Jane Thorpe, an Atlanta defense lawyer who has worked on behalf of pharmaceutical companies in similar cases.

“The Vioxx litigation is not going to turn on any single verdict,” said Thorpe. “Mass tort litigation is fought over the long haul, not the short term. There will be appeals, whether they win or lose. If they win, it will restore some order to the process and give some credibility to their science arguments.”

Merck remains committed to trying the Vioxx cases one by one.

“Certainly, this case is an important case, but so are all of our cases,” said Jim Fitzpatrick, a spokesman for Merck who has sat in on the trial. “The verdict here is important, but it’s one case and we’re taking them one at a time.”

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