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Merck gets boost in suits on Vioxx with win in N.J.

Jury rules painkiller wasn't the cause of woman's heart attack

NEW YORK --Merck & Co. won a victory in New Jersey yesterday when a jury ruled the drug maker's Vioxx painkiller wasn't a cause of a 68-year-old woman's heart attack, strengthening its position in about 16,000 similar lawsuits.

Jurors in Atlantic City found Vioxx didn't contribute to Elaine Doherty's heart attack in 2004. Merck warned Doherty's doctor of the drug's risk, and didn't defraud consumers, jurors said. The company lost one ruling when jurors said Merck didn't warn Doherty herself. No Vioxx jury in six previous trials was asked about warnings to a patient.

``If I were a plaintiffs' attorney sitting on the fence, I would certainly be daunted by this verdict," said Mike Kelly, an lawyer at McCarter & English who represents drug makers.

Merck, the fourth-largest US drug maker, won two earlier trials and a split verdict in a third. The company lost three Vioxx verdicts with damages of $298 million, which will drop to $48 million because of state limits on punitive awards. Merck allocated almost $1 billion for Vioxx litigation and vows to fight every case.

``This really reinforces our strategy of trying every case," said Merck attorney Jim Fitzpatrick of Hughes Hubbard & Reed. ``We made the appropriate safety disclosures to doctors, and we demonstrated that Vioxx did not cause Mrs. Doherty's heart attack."

Some analysts said Merck eventually will have to reach a global settlement of Vioxx litigation. The verdict today will help any such effort, said analyst Steve Brozak of WBB Securities in Westfield, N.J.

``The thing shareholders fear the most is there is no settlement that is financially suitable for Merck," he said. ``Every time they are able to win in court, that settlement price goes down."

Shares of Whitehouse Station, N.J.-based Merck rose 24 cents to $36.94 in New York Stock Exchange composite trading. They have risen 16 percent this year.

Merck withdrew Vioxx, which had as much as $2.5 billion in annual sales, when a 2004 study showed it doubled the risk of heart attacks after 18 months. Merck blamed Doherty's heart attack on her age, weight, diabetes, cholesterol, blood pressure, and clogged arteries .

``We simply believed that the risk factors were too insurmountable," juror Joseph Calabrese told reporters.

Doherty didn't comment after the verdict. The jury of five men and two women decided the case on their second day of deliberations.

One of her attorneys, Gene Locks, hailed the jury's 7-0 vote that Merck failed to warn her of the drug's risks. Other juries considered only whether Merck failed to warn doctors.

``This is a huge, major, precedential verdict for plaintiffs countrywide, because this jury unanimously determined that Merck failed to adequately warn users of the drug," Locks said.

Merck attorney Diane Sullivan, who has won two Vioxx trials, said Superior Court Judge Carol Higbee shouldn't have submitted the consumer failure-to-warn claim to jurors.

``The duty to warn is to the physician because the physician prescribes the medication," said Sullivan, of Dechert, a Philadelphia law firm. ``This is an unprecedented claim in pharmaceutical liability litigation. We think we have a strong legal argument that this kind of claim should not be submitted to a jury."

Doherty's lawyers said she was controlling her cardiac risk factors when she had a heart attack at home in Lawrenceville, N.J., in January 2004. She had lost nearly 100 pounds, her blood pressure was normal, and her diabetes and cholesterol were improving, said her attorney, Jim Pettit.

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