Merck & Co. Inc.’s victory in the first federal case over its recalled painkiller Vioxx may be short-lived, as investors look to bigger legal hurdles ahead, analysts said.
On Friday, a federal jury found the drugmaker was not liable in the 2001 death of a Florida man who had used Vioxx for less than a month.
Analysts said it would have been a huge loss if Merck failed to win the case, the first in a federal court and the third of more about 9,600 cases filed against Merck in U.S. and state courts claiming the company hid health risks of the once-best-selling painkiller.
But a far more significant test of Merck’s standing will come when cases of long-term Vioxx users come to trial, given that Vioxx’s heart attack and stroke risks are shown to kick in after 18 months. The first of those cases is expected to start in New Jersey later this month, according to analysts.
“It’s the best possible win for the case, but it is not the end of the battle,” said Scott Henry, an analyst at Oppenheimer. “The next test case will really be long-term users. Investor sentiment certainly swings probably more than it should on each individual case.”
Merck recalled Vioxx in September 2004, after it was shown to double heart attack and stroke risks for those who took it at least 18 months.
Looking ahead
The first trial involving long-term Vioxx use comes up in New Jersey, in a trial expected to begin Feb. 27 involving two Vioxx users who took the drug for 25 months and 49 months, respectively. Mark Lanier, the lawyer for the two plaintiff’s whose complaints are being heard in one case, won the first Vioxx case.
In that first case, a Texas jury found Merck negligent in its marketing and design of Vioxx and ordered the company to pay $253 million for the death of a marathon runner who took Vioxx for eight months.
That award, which Merck plans to appeal, is expected to be cut significantly, because of Texas laws limiting damages.
“I think what will happen is you’ll see different verdicts down the road when you get plaintiffs who have been on the drug for more than a year,” said Barry Knopf, a plaintiffs’ product liability lawyer and partner in the New Jersey law firm of Cohn Lifland Pearlman Herrmann & Knopf.
Still, some experts said the federal jury’s tacit approval of Merck’s marketing conduct in the case decided Friday is significant.
“The jury not only declined to impose liability on Merck, they also made particular findings that there was nothing wrongful about Merck’s conduct. It shows that Merck’s argument that it acted properly is beginning to carry some weight with juries,” said Benjamin Zipursky, professor at Fordham University School of Law.
