Jury Trial Begins in Texas Vioxx Case

Merck & Co. traded its mission of healing for the pursuit of profit, a plaintiff’s lawyer told jurors Thursday in the nation’s first Vioxx lawsuit to go to trial.

Mark Lanier, representing widow Carol Ernst, displayed the phrase “Merck-y ethics” on a large screen and promised to demonstrate that the company knew the popular painkiller could be dangerous years before a study showed that it could double risk of heart attack or stroke.

The study prompted Merck to take it off the market last year.

In a much more subdued presentation, Merck lawyer David Kiernan, who also is a surgeon, urged jurors to keep an open mind as Merck sought to show that it didn’t rush a lucrative drug to market and slip shoddy science past the Food and Drug Administration to pump up profit.

“That charge could not be more false,” he said.

The case in Angleton, a town about 40 miles south of Houston, is the first of more than 3,800 lawsuits pending against Merck, which is based in Whitehouse Station, N.J.

Ernst’s husband, Robert, a personal trainer, died in his sleep four years ago of an arrhythmia, or irregular heartbeat. He had been taking Vioxx for about eight months to ease pain in his hands.

Lawyers from throughout the country associated with other Vioxx lawsuits packed the courtroom for opening statements -- more than two hours by each side.

Kiernan said Vioxx had been in development since 1991 and that it cut in half the potentially lethal stomach bleeding that some patients got from pain relievers such as aspirin.

Vioxx was tested in 58 clinical trials involving 10,000 patients before it went on the market, he said, far surpassing FDA testing recommendations.

With photos, graphics and documents shown on a large screen behind him, Lanier targeted former Merck Chief Executive Ray Gilmartin. He described Gilmartin as the first non-doctor or non-scientist -- “a Harvard-trained businessman” -- to run Merck, starting in 1994.

Lanier said Gilmartin aimed to turn Merck into “an ATM machine that’s spitting out money” by beefing up sales with glitzy television ads for various drugs -- including Vioxx, which came on the market in 1999.

Vioxx was crucial to Merck, Lanier argued, because patents on other lucrative drugs ran out in 2000 and 2001 and “if Vioxx doesn’t fill up the ATM machine for us, we’re running dry. It’s Vioxx or bust.”

He said the company downplayed studies that raised concerns about Vioxx’s safety and pushed the painkiller to a growing market of arthritis sufferers and their doctors to keep the bottom line robust.

“You watch what happens to their studies. It will make you sick,” Lanier said.

The lawyer said Merck wined and dined Robert Ernst’s doctor, Brent Wallace, and targeted him and many other doctors in a plan to push them to prescribe Vioxx. He said the company paid doctors to let Merck sales representatives watch them write the prescriptions.

Kiernan said doctors weren’t bought so easily.

“It doesn’t say much about the doctors if they will choose your medicine based on whether you take them to a baseball game,” he said. “They don’t, and they won’t.”