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John Bisnar
John Bisnar
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Merck scores another victory

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A jury in the Midwest this week cleared drugmaker Merck of liability in a case involving its once-blockbuster painkiller Vioxx saying that a 52-year-old obese woman didn’t die because she took Vioxx, but from several other health complications.

A Madison County court jury found that Merck & Co. adequately warned doctors and consumers about possible complications from using Vioxx. After deliberating over two days, jurors ruled that the painkiller was not a “proximate cause” of Patty Schwaller’s death, according to an Associated Press article posted on the CBS News Web site.

The company had argued that Schwaller’s obesity and other health issues might have posed risks that better explain her collapse and sudden death. Schwaller had taken Vioxx for about 20 months. Her husband claimed in the lawsuit that Vioxx contributed to his wife’s death and that Merck failed to sufficiently warn consumers that the drug increased the risk of cardiovascular problems.

The victory was Merck 10th in 15 cases that have been tried in the mushrooming litigation over the drug Merck pulled off the market in 2004 after its research showed it increased the risk of heart attacks and strokes.

Schwaller’s widower, Frank Schwaller, showed no emotion when the verdict was read, but Dan Ball, an attorney for Merck, mouthed “thank you” several times to the jurors.

Schwaller’s attorneys said they plan to appeal the decision, the article said. The case took a bad turn for the plaintiff when Merck lawyers insisted that Patty Schwaller had several risk factors for heart disease, including obesity, diabetes, high blood pressure and a sedentary lifestyle. Her own attorneys have admitted that the 5-foot-2 woman’s weight fluctuated between 250 and 300 pounds for roughly two decades before her death.

But her attorneys also told jurors during the trial that Vioxx pushed consumers like Schwaller “over the cliff” and worsened their existing health problems.

Vioxx was aggressively marketed by the company and became Merck’s No. 2 drug, generating more than $11 billion in sales from May 1999 through September 2004, according to regulatory filings and other information from the company, based in Whitehouse Station, N.J.

“I’m not against companies making money, but not at the expense of their patients,” the plaintiff’s attorneys told jurors.

This is a particularly sad case because the jurors could not look beyond the woman’s existing health problems. In my experience in dealing with our clients who are awaiting their trials against Merck, I can say with confidence that the medical facts and Merck’s actions clearly point to Vioxx causing serious heart conditions.

The way the cases that are waiting in line for trial are chosen as to which go to trial first their will be cases going each way. One of the challenges that the Vioxx victims have in these cases is proving that Vioxx was the “proximate cause” of the injury. Someone who is prescribed Vioxx for a long period of time is likely to have “health issues”. It is combination of these preexisting “health issues” and the use of Vioxx that, in reality, cause the injury.

If you had billions of dollars and were being sued for millions of dollars, how much could you spend on lawyers to defend you? Millions, right. We’ll that is what Merck is doing. They have teams of the best defense lawyers in America working around the clock, teaming together to defeat the claims of Vioxx victims. It is the classic David vs. Goliath struggle.

Even if Merck wins two out of every three cases, they are still wrong. They still killed and injured thousands of people. Instead of taking the millions they are paying their defense attorneys and the money they will pay the victims that prevail, they could have owned up to the problem and used that same money to compensate all the real victims in comprehensive, fair manner. Merck would rather continue to deny, deny, deny.

Merck has proved consistently with its aggressive marketing tactics – be it Fosamax or the recent cervical cancer vaccine Gardasil. The company has a habit jumping the gun with its medicines. However, proving it in court has been a challenge for patients. The patients attorneys are spending over a million dollars a case to bring these cases against Merck. How could one of these injured victims of Merck greed ever get into the court room without a personal injury attorney risking a fortune of his own money? They couldn’t. Even though ten of the victims’ lawyer teams have lost to Merck have lost, I am very proud of them and proud to stand among them. They stood up for their clients, with their time, talent and money. Where would America be if personal injury attorneys did not stand up for common Americans against giant foreign companies like Merck?

The score in the early phases of this epic battle, Merck: 10 Plaintiffs: 5. But there are many, many more lawsuits to go.