Humeston v. Merck Trial in Atlantic City New Jersey
Mike Humeston used Vioxx to treat pain from his Vietnam war wounds for four months before suffering a non-fatal heart attack. Was Vioxx the cause of the heart attack and what are his damages?
Daily progress reports from www.adrworks.com
Monday September 12, 2005 Jury selection begins with warnings that people who have already formed an opinion about the highly publicized issues in the case would not be proper for the jury. A number of former Vioxx users are released as well.
Tuesday September 13, 2005 Jury selection is completed with 10 jurors being 7 women and 3 men selected
Wednesday September 14, 2005 Opening statements were made by plaintiff's counsel Chris Seeger and defence counsel Dianne Sullivan. The focus was on Merck's motivation and intentions with Vioxx and the prior health of Mr. Humeston.
Thursday September 15, 2005 Mr. Humeston's family doctor Gregory Lewer was examined and cross examined. He believed his patient was in very good health and that Vioxx was the best explanation for the cause of the heart attack. Merck's lawyer was reprimanded by the judge for comments that she made regarding Mr. Humeston being "surrounded by his attorneys".
Friday September 16, 2005 Merck failed in its attempt to exclude the evidence of renowned cardiologist Dr. Benedict Lucchesi who is a professor of Pharmacology at the University of Michigan Medical School. Dr. Lucchesi is part of the original team of doctors who invented the pacemaker. It is Dr. Lucchesi's opinion that Vioxx triggered Mike Humeston's heart attack.
Monday September 19, 2005 Dr. Lucchesi was cross examined by counsel for Merck
Tuesday and Wednesday September 20 and 21 Evidence was presented in the form of videotaped depositions of former Merck Executives about what they knew and thought about Vioxx. Emails expressing concern about Vioxx and study results were the subject of many questions.
Thursday September 22 The Plaintiffs called a statistician whose evidence was that the testing of Vioxx made very clear to Merck the high risk of the drug and that this risk exists even with short term use. The defence pointed out how much money the witness was paid for his work in an attempt to discredit him.
The trial has continued until September 30. Merck has argued strenuously to exclude the statistician evidence without success. Other doctors including cardiologists have been called to confirm that there was no reason other than Vioxx for the heart attack. The plaintiff gave evidence confirming how his life has been affected detrimentally by the consequences of the heart attack.
Monday October 3, 2005 Merck failed in its fifth motion for a Mistrial and the trial continued with evidence of Mr. Humeston's wife about how their lives have been affected. She said she saw him take two Vioxx pills on the day of his heart attack and could not say how many he had taken before.
Tuesday October 4, 2005 The trial had a recess for the Jewish New Year (Rosh Hashana)
Wednesday October 5, 2005 Dr. Alan Nies who was responsible for Merck's investigation of the safety of Vioxx gave evidence about what Merck knew and believed about the cardiac risks of Vioxx. He stated that the company did not believe the increased number of heart attacks among patients trying Vioxx was related to the drug.
Thursday October 6, 2006 Merck called Dr. Briggs Morrison, a company physician, to open it defence. Dr. Morrison gave opinion evidence that Vioxx did not create a higher risk and suggested that Merck carefully tested the drug's affect on blood clotting. The Plaintiff's counsel objected to Dr. Morrison being called as an expert and giving evidence beyond what was in his deposition. This set the stage for a showdown on Friday between the Judge and Merck's lawyers.
Friday October 7, 2005 In shocking proceedings Dr. Morrison's evidence was excluded by the Judge as improper. Read this.
Week of October 10, 2005 A cardiologist gave evidence on Monday regarding cardiac risk and causation. Alise Reicin of Merck was on the stand Tuesday and Wednesday with evidence over what Merck knew about cardiac risk at an early stage of research and how they interpreted the testing of Vioxx. The trial broke off on Wednesday to continue Friday after the Jewish Holiday of Yom Kippur.
Friday October 14 Alise Reicin continued her evidence
Monday October 17 Dr. Reicin concluded her evidence. She gave evidence that Merck was looking for an additive to put in Vioxx to counter negative heart effects before the drug was recalled. They did not want to use aspirin because they wanted to retain the quality of low gastrointestinal risk.
Tuesday October 18 Dr. Theodore Tyberg, a Cardiologist, gave evidence for Merck pointing out all the other risk factors of Mike Humeston and concluding that it was not likely that his short term use of Vioxx would have caused his heart attack. Risk factors included stress at his job and lack of exercise due to his original knee injury.
Wednesday October 19 and Thursday October 20 Dr. Tyberg was cross examined but held his ground. This time Plaintiff's counsel was raising his voice and had to cautioned by the judge. Dr. Tyberg's evidence was concluded and it was understood Merck would call one more expert the following week
Legal argument was made on Friday October 21 regarding admissibility of an FDA memo made this year which is favourable to Merck.
Monday October 24 The court ruled that the FDA memo could be admitted in part with the examination of the next Merck witness.
Tuesday October 25 and Wednesday October 26 Merck called Dr. John Michael Gaziano a cardiologist and Associate Professor at Harvard University Medical School. He gave the opinion that only long term use of Vioxx could pose a heart risk and that Mike Humeston's heart attack could not have been caused by Vioxx.
Thursday October 27 The court has a day off before closing argument
Friday October 28 closing arguments did not take place as the lawyers met with the judge outside of court to argue over what the judge is to say in directing the jury after they hear closing arguments.
Monday October 31 Closing arguments proceeded on Halloween on behalf of Merck and lasted over 3 hours. In the closing Merck emphasized that short term Vioxx use does not cause heart attacks in their opinion and referred to FDA findings on that point. They also stated that the company had good intentions and was not trying to "trick" the public with Vioxx. Plaintiff closing argument was put off until the next day.
Tuesday November 1 Plaintiff closing argument proceeded for two hours and then the Judge sent out the jury to begin deliberations. The 9 jurors met for one hour and then broke for the day.
Wednesday November 2 Jury deliberations continued all day with no verdict.
Thursday November 3 Jury deliberations ended with the following findings in response to questions put to the jury:
Jury verdicts
on the specific counts in Frederick Humeston et al v. Merck & Co. Inc.
Counts regarding failure to warn of Vioxx risks:
1. Did Merck fail to adequately warn physicians of the link between Vioxx and
higher risks of heart attack and stroke, which it knew or should have known
about before Frederick "Mike" Humeston's heart attack?
-Verdict: NO by an 8-1 vote.
Counts regarding failure to warn of Vioxx risks:
1. Did Merck commit consumer fraud "by using unconscionable commercial
practices" when marketing Vioxx to physicians?
-Verdict: NO by a 9-0 vote.
2. Did Merck "make misrepresentations that had the capacity to mislead
concerning the cardiovascular risk of Vioxx" while marketing Vioxx to
physicians?
-Verdict: NO by a 9-0 vote.
3. Did Merck "intentionally suppress, conceal or omit material information about
an association between Vioxx" and increased risk of heart attack and stroke?
-Verdict: NO by a 9-0 vote
Merck won this trial which will help make clear what type of claims will be successful. A higher standard will most likely be required than the facts in the Humeston case. This is a loss but it may move us closer to terms for settlement of claims. At a November 7th 2005 Case Conference Judge Higbee advised that the next trials will be for cases of long term Vioxx users. This means 18 months or more where Merck has indicated Vioxx could be a heart or stroke risk.
On appeal a new trial was ordered on the grounds that Merck's evidence was misleading. The new trial began in January 2007.