Jury Hears Final Arguments in Vioxx Case

In Angleton, Texas, jurors begin deliberations in the first Vioxx-related case to come to trial. Merck pulled Voxx from the market last year after a study showed the painkiller caused heart attacks. Merck maintains Vioxx was the most-intensively studied painkiller ever designed. The case is being closely watched, because Merck faces more than 4,000 similar Vioxx lawsuits.

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In Angleton, Texas, today, jurors begin deliberations in the first Vioxx-related case to go to trial. Drugmaker Merck took Vioxx off the market last year after a study showed the painkiller may cause an increased risk of heart attack. This case is one of more than 4,000 similar suits filed against Merck. Stock analysts say the company could spend billions of dollars to settle the cases. NPR's Snigdha Prakash reports.

SNIGDHA PRAKASH reporting:

As jurors begin deliberating in the Brazoria County courthouse this morning, they'll be mulling over two starkly different portraits of the drugmaker Merck. Plaintiff's attorney Mark Lanier has used his folksy manner, sunny grin and preacherlike zeal to draw a picture of a company that, in his words, spent a decade in denial and deception about the risks of Vioxx. Lanier told jurors Wednesday that the damage from Merck's behavior reached all the way to the 59-year-old Robert Ernst, who died in 2001 after taking Vioxx for eight months. Ernst's widow is the plaintiff in this case.

As Lanier summed up his case for jurors, he read excerpts from Merck's own documents, such as a 1997 e-mail from a senior Merck scientist expressing concern about Vioxx's cardiac risks even before the drug was brought to market. Lanier told jurors Merck should have acted on its concerns by the year 2000 and pulled Vioxx from market. That's when a study showed that patients on Vioxx had five times as many cardiac problems as those on an older painkiller, naproxen. Lanier told jurors that instead, Merck trained sales representatives to dodge questions about Vioxx and heart attacks. He said the company delayed putting a stronger warning label on Vioxx because it had calculated that a stronger warning would cost it hundreds of millions of dollars in lost sales.

At the end of the day, Lanier told reporters he wanted the jury to send Merck a message.

Mr. MARK LANIER (Attorney): I want the jury to say, `You who run the drug industry in America have in your hands the power of life and death for countless Americans, and we will not let you hold that lightly. You must be responsible and you must be accountable, and when you make mistakes, you need to step up to the plate and you need to take responsibility for it.'

PRAKASH: Merck's team of lawyers is asking jurors to believe a very different picture of Merck. They've used a careful, understated, businesslike manner to drive home their point that Merck is a conscientious corporate citizen, whose actions were guided by its corporate motto: Where patients come first. Here's how attorney Jonathan Skidmore drew that portrait of Merck for reporters yesterday.

Mr. JONATHAN SKIDMORE (Attorney): Merck has from the early stages of discovery of Vioxx, the drug, they have used incredibly rigorous scientific studies, and all along the way they looked at the data, they disclosed the data, they provided the data to the FDA, and they based all their decisions on sound, scientific data every step of the way.

PRAKASH: Merck's lawyer David Kiernan told lawyers in his closing arguments on Wednesday that Merck cut no corners in testing Vioxx. He said the company had done 99 studies of the drug before it asked the FDA in 1998 for permission to sell Vioxx. He said the studies were done by independent investigators, not Merck employees. He said all the studies were reviewed by the FDA and Merck shared the evidence with doctors and scientists. Kiernan said Merck continued to study Vioxx even after it was approved by the FDA, and he said when evidence emerged that Vioxx caused heart problems, Merck immediately and voluntarily withdrew the drug from the market.

The differences in these portraits matter a great deal. Jurors have been instructed to determine if Merck's failure to warn doctors of Vioxx's risks caused the death of Robert Ernst. Jurors will also have to determine if Robert Ernst's arrhythmia, or irregular heartbeat, was actually caused by Vioxx. Merck lawyers say there's no scientific study linking Vioxx to that condition. Plaintiff's attorney Mark Lanier says Vioxx caused a blood clot that led to the arrhythmia. If the jury finds for Robert Ernst's widow, they can compensate her for the loss of her husband's earnings, for the loss of his companionship and for her pain and suffering. They can also hit Merck with punitive damages. All this could add up to millions of dollars.

Snigdha Prakash, NPR News, Angleton, Texas.

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