Merck may settle some Vioxx cases, NJ trial looms

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Merck & Co Inc. on Friday signaled it may consider settling some lawsuits alleging harm from its Vioxx pain drug, as it gears for its second Vioxx court battle—this time in its own back yard.

The next Vioxx trial is set to begin on September 12 in Atlantic City, New Jersey, although Merck’s lawyers on Wednesday asked the state court to delay it for 45 days so a “torrent” of bad publicity from the recently concluded first Vioxx trial in Texas can die down.

Merck, which previously said it would fight each of the thousands of lawsuits one by one, on Friday indicated it may be softening its stand by settling some cases out of court.

"For a relatively small set of cases that involve patients who used Vioxx for over 18 months, we will take a close look,” said Kent Jarrell, a spokesman for Merck’s legal team, echoing published comments earlier in the day by Merck’s general counsel.

Merck withdrew its popular pain and arthritis drug in September after it was shown to double the risk of Heart Attack and Stroke among patients who took it 18 months or longer.

But a Texas jury last week awarded $253 million to the widow of a tri-athlete who died of heart arrhythmia after taking Vioxx for no more than eight months.

Merck has vowed to appeal the Texas verdict and use the lessons learned from that defeat to better defend itself in Atlantic City—the resort town located 125 miles from the drug maker’s headquarters in Whitehouse Station, New Jersey.

The New Jersey court battle—involving one of almost 5,000 Vioxx-related U.S. lawsuits Merck faces—features some key differences from the widely publicized Texas trial.

For one thing, Merck will face a local jury in New Jersey, which is also home to many drug makers, such as Johnson & Johnson and Schering-Plough Corp. that employ thousands of state residents.

And while the Texas case was a wrongful death suit brought by a widow who blamed Vioxx for her husband’s death, the plaintiff in the New Jersey Superior Court trial is a Heart Attack survivor the jury will be able to see and hear.

Still, legal experts say there is no way to know if any of these factors will make a difference in the trial. The case is being closely watched in part because many hundreds of the Vioxx cases that Merck faces have been filed in New Jersey state court.

“Home state defendants hope to get some home court advantage in the sense that jurors may be concerned about the loss of jobs in the state” if the company loses and must pay big damages, said Howard Erichson, a professor at Seton Hall University Law School.

“I suppose it benefits Merck a little bit, but I wouldn’t make too much of it,” he said. “There are plenty of people in the jury pool who are likely to be as sympathetic to consumers as to the business.”

The New Jersey case was filed by Frederick Humeston of Boise, Idaho, a 60-year-old postal carrier and Vietnam War veteran, who says Vioxx was responsible for his 2001 Heart Attack.

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