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Lisa Brennan
New Jersey Law Journal
03-13-2007

An Atlantic City, N.J., jury on Monday awarded $18 million in compensatory damages to a former user of the painkiller Vioxx, and $2 million to his wife, finding Merck & Co.'s failure to warn of the drug's cardiovascular risks substantially contributed to his heart attack.

The eight-member jury deliberated for five hours before handing up its finding that Frederick Humeston's doctor could have warned him about the risks had he known about them before Merck changed its label in April 2002.

Humeston, a Vietnam veteran, had taken Vioxx for three months for knee pain from a shrapnel wound when he suffered a heart attack in September 2001.

The damages verdict came 10 days after the jury made a general finding that Merck misrepresented Vioxx's heart risks while marketing it to doctors and suppressed information about the risks.

The jury also found for Humeston on four consumer fraud counts and is deliberating whether to award punitive damages.

The jury unanimously awarded $18 million to Humeston, 61, for pain, suffering and loss of enjoyment of life a and $2 million to his wife Mary for "loss of society and services of her husband."

Humeston's first trial -- which was also the first Vioxx trial in New Jersey -- ended in a no-cause verdict in 2005. Superior Court Judge Carol Higbee granted a retrial last August upon finding that Merck had withheld cardiovascular safety data from a landmark Vioxx study.

The jury heard that data in the seven-week trial just ended, and Humeston's lawyer, Christopher Seeger of Seeger Weiss in Newark, N.J., and New York, said that made all the difference.

Merck's lead attorney, Diane Sullivan of Dechert in Princeton, N.J., had argued that Humeston had other risk factors that caused his heart attack, including high blood pressure and cholesterol levels.

Merck co-counsel Hope Freiwald, of Dechert in Philadelphia, said after Monday's verdict, "We certainly hoped for a different result."

Humeston's suit was tried with that of Brian Hermans, who died of a heart attack in September 2002 at 44, whose sister Kathleen Messerschmidt sued in his stead.

But unlike in Humeston's case, the jury found no duty to warn Hermans, whose heart attack came five months after Merck changed the Vioxx label to note the cardiovascular risks. That finding meant that the jury could not assess damages flowing from a failure to warn, since the consumer-fraud provisions of New Jersey's product liability law require a plaintiff to establish such a failure as a condition of recovery. Messerschmidt can at most recover three times the cost of the Vioxx her brother took, as well as attorney fees and expenses.

Messerschmidt's attorney, W. Mark Lanier of the Lanier Law Firm in Houston and New York, unsuccessfully moved to overturn the verdict, arguing that the result was due to the jurors not having been told that Hermans had taken Vioxx for nearly two years. But that was due to the fact that Lanier and his co-counsel had argued to keep the medical histories out of court so the trial would be a general liability phase. Higbee denied the motion.

Higbee has not yet ruled on Lanier's request for nearly $1.5 million in attorney fees and costs.