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Florida family loses in first federal Vioxx case

Associated Press
Published February 18, 2006


NEW ORLEANS - A federal jury handed Merck & Co. a major victory on Friday, clearing the drugmaker of any responsibility in the death of a 53-year-old Florida man who had a heart attack after taking Merck's once popular painkiller Vioxx for less than a month.

This was the second court victory for Merck, the first in a federal court. The company had argued that plaintiff lawyers never proved any link between Vioxx and the heart attack Richard "Dickey" Irvin suffered in 2001. Merck's lawyers contended Irvin's age, gender and diet all put him at risk for heart attacks.

It was also the second time jurors heard the case brought by Irvin's family. Jurors were unable to reach a verdict the first time. Merck won a state case in New Jersey last year while it lost one in Texas.

Irvin's widow, their youngest daughter and their son testified that Irvin's health had been excellent up to his heart attack.

Family attorney Andy Birchfield said the biggest problem was Judge Eldon Fallon's ruling, shortly before the trial, that two of their experts - a cardiologist and a pathologist - could not testify that Vioxx was to blame. They were experts, but not about Vioxx, the judge ruled.

Phil Beck, a lawyer for Merck, said he thinks the verdict indicates "that the Merck scientists lived up to their legal and ethical responsibilities when manufacturing and marketing Vioxx and making the decision to take Vioxx off the market."

Shares of Merck rose 90 cents, or 2.5 percent, in after-hours trading. They closed up 7 cents at $36.05 Thursday in regular trading on the New York Stock Exchange.

Observers said the verdict was a victory but the company will face more formidable cases later with plaintiffs who took Vioxx for 18 months or longer. Merck removed Vioxx from the market after a study showed it doubled patients' risk of heart attacks and strokes after 18 months.

Still, Howard Erichson, a professor at Seton Hall Law School said this verdict may keep plaintiff lawyers from filing short-term use cases. It may also help Merck because the judge overseeing all the federal cases has said he wants to discuss a settlement after trying the first four.

Merck senior vice president and general counsel Kenneth Frazier said the company intends to try each case individually.

Frazier also said that the study that caused Merck to withdraw Vioxx may give plaintiff lawyers a data point to use in their cases, but they still face the burden of proof in proving that the drug was a cause of the heart attack or stroke.

Irvin took Vioxx for back pain, but never saw a doctor about it. Instead, the resident of St. Augustine called his son-in-law, an emergency room physician who lived in another city. He hadn't been able to keep down the first two painkillers prescribed by Dr. Richard Schirmer. After he tried a sample given to him by an acquaintance, he asked Schirmer for Vioxx.

Much of the evidence put on by Plunkett's attorneys focused on whether Merck should have added a warning to the label after it learned in early 2000 that patients taking Vioxx in a drug test had five times as many heart attacks as those on naproxen, another painkiller.