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Lisa Brennan
New Jersey Law Journal
03-07-2007

The judge in New Jersey's latest Vioxx trial has refused to overturn a jury verdict that makes one of the plaintiffs ineligible to recover more than nominal damages.

Superior Court Judge Carol Higbee on Monday denied a motion to set aside the jury's Friday finding that there was no failure to warn Brian Hermans, who died of a heart attack after using the painkiller, of its cardiovascular dangers.

Athough the jury found Merck misled patients and physicians and suppressed information about Vioxx's risks, the consumer-fraud provisions of New Jersey's product liability law requires a plaintiff to establish a failure to warn in order to recover compensatory or punitive damages on other counts.

As a result, Hermans' sister Kathleen Messerschmidt, who is suing for wrongful death, can at most recover three times the cost of the Vioxx her brother took, as well as attorney fees and expenses.

Plaintiffs lawyer W. Mark Lanier, of the Lanier firm in Houston and New York, argued in his motion that the jury verdict was inconsistent, especially in view of the fact that the jury found Merck failed to provide adequate warning to co-plaintiff Frederick Humeston, 61, who suffered a heart attack but survived.

But Lanier and his co-counsel may have been hoisted by their own petard, because they had pushed for months to keep the medical histories out of court so the trial would be a general liability phase. The plaintiffs have pushed for group trials because of the number of cases waiting to go to trial in New Jersey -- nearly 15,200 of the 27,000 Vioxx suits filed nationally.

As a result, jurors heard no evidence that Hermans began taking the drug in February 2001 or that it contributed to his fatal heart attack. Hermans died of a heart attack in September 2002, at age 44, five months after Merck & Co. relabeled Vioxx to warn of potential problems.

Merck attorney Hope Freiwald, of Dechert in Philadelphia, called Lanier's motion an attempt at a "do-over."

The trial now proceeds to the causation phase. On Monday, Humeston's lawyers were ready to show that the painkiller caused Humeston's heart attack and to push for damages.

Humeston's case is a retrial of New Jersey's first Vioxx case. His first trial ended in a no-cause verdict in 2005.

Last August, Higbee vacated that verdict, citing newly discovered evidence, in particular a New England Journal of Medicine article that Merck had withheld key cardiovascular safety data from a landmark Vioxx study. Humeston is represented by Christopher Seeger and David Buchanan of Seeger Weiss in New York and Newark, N.J.

Merck withdrew Vioxx in 2004 when a study showed it doubled the risk of heart attacks after 18 months of use. Before the current case, the Whitehouse Station, N.J., company had won nine of 13 Vioxx cases tried so far.