Closing Arguments to Begin in Vioxx Case

Closing arguments in the first Vioxx-related case begin tomorrow in Texas. Merck the pharmaceutical company, who manufactured the drug, is facing thousands of wrongful death and injury cases across the country.

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In Angleton, Texas, jurors tomorrow will hear closing arguments in the first Vioxx-related case to go to trial. Merck withdrew Vioxx from the market last year after a study showed the painkiller caused heart attacks. Now this case involves a 59-year-old man who died of an irregular heartbeat after taking Vioxx for eight months. And it's an important case because Merck faces some 4,000 wrongful-death and injury cases across the country, and that number is growing. NPR's Snigdha Prakash reports.

SNIGDHA PRAKASH reporting:

The first Vioxx verdict will yield only a tiny bit of information about how the thousands of other cases will go, and yet lawyers, investors and analysts are hanging on what the jury in Angleton, Texas, decides. Richard Evans is a stock analyst Sanford Bernstein & Co.

Mr. RICHARD EVANS (Stock Analyst, Sanford Bernstein & Co.): I think everyone who follows Merck and follows the stock is going to be paying a lot of attention to this verdict. Observers are going to be looking to the Texas verdict to help understand how much the liability for Vioxx ultimately is going to cost Merck.

PRAKASH: Evans puts that number at $30 billion; other analysts say it will be less. It's not a sum that would bankrupt Merck. The company generates a lot of cash. Moreover, the payments, if they occur, would be spread out over many years. But $30 billion, or a payout half that size, will hurt. It means Merck would have less money to develop drugs that can replace its aging best-sellers, Zocor, the cholesterol drug, and Fosamax for osteoporosis. Some analysts say it would make Merck vulnerable to acquisition by another pharmaceutical company. The verdict in Ernst vs. Merck is being keenly watched by another group of interested observers, lawyers for other Vioxx plaintiffs, according to Stanford law professor Robert Rabin.

Professor ROBERT RABIN (Stanford Law): If a well-heeled defendant like Merck fights these cases tooth and nail, they are very, very expensive. So plaintiffs' lawyers who need to win the cases in order to recover their costs and get a fee are cognizant of the fact that it's very important to see what the probability of success will be, and the early cases give some indication.

PRAKASH: Rabin says if that the jury decides for the plaintiff in this case, plaintiffs' lawyers will be heartened and more Vioxx cases will likely be filed against Merck. The legal challenge to Merck will gain momentum. Law professor Howard Erichson of the Seton Hall Law School says a victory for Merck in Angleton, Texas, would also have effects far beyond this one case.

Professor HOWARD ERICHSON (Seton Hall Law School): If Merck wins, then it's like a splash of cold water on the litigation. It doesn't end the litigation, certainly, but it does send a message to plaintiffs' lawyers that the money and time they're investing in this litigation may not have a payoff at the end and it's less likely to encourage additional plaintiffs to go ahead and assert their claim.

PRAKASH: Even as plaintiffs' lawyers look to Angleton for clues to how aggressively they should pursue Merck, Erichson cautions those clues could be misleading. He says verdicts in early cases aren't necessarily accurate predictors of how later cases will go.

Prof. ERICHSON: The early results in mass tort litigation can be extremely important, but it's also important not to overstate their value. It often happens that early results are aberrational.

PRAKASH: He points out that plaintiffs lost the early asbestos cases. They won the early breast implant cases, and the early verdicts were misleading in both instances. Juries in the later breast implant cases, for example, had the benefit of scientific information that earlier juries didn't.

Prof. ERICHSON: Mass tort litigation has a way of moving quickly, sometimes more quickly than the science or more quickly than the discovery of relevant evidence.

PRAKASH: Analyst Richard Evans expects new evidence to emerge that will influence Vioxx cases, as well. Merck has disclosed it's being investigated by the Securities and Exchange Commission. The company also says the Justice Department is conducting a criminal investigation into its research, marketing and selling of Vioxx. Evans says whatever government subpoenas uncover will eventually end up in the hands of plaintiffs' lawyers, and he believes it could worsen Merck's legal situation.

Snigdha Prakash, NPR News, Washington.

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