Los Angeles Daily Journal

Plaintiff Prevails in Federal Vioxx Case

By Bobbi Murray
Daily Journal Staff Writer
Friday, August 18th, 2006

LOS ANGELES - The Newport Beach-based powerhouse firm Robinson, Calcagnie & Robinson scored the first plantiffs' victory in a federal Vioxx trial on Thursday in New Orleans. Meanwhile, in the second legal blow one day for Merck & Co, the maker of Vioxx, a New Jersey judge vacated a defense verdict from November. In the federal trial before Judge

Eldon Fallon in New Orleans, the jury returned a unanimous verdict that Merck has been negligent in warning of the risks associated with Vioxx. They awarded $50 million in compensatory and $1 million in punitive damages to plantiff Gerald Barnett, a retired FBI agent who suffered a heart attack in 2002 at age 58. Mark P. Robinson, a senior partner with Robinson, Calcagnie Robinson credited plantiffs' attorneys who tired previous Vioxx cases. "I learned from the way other people tired the cases. When you go out first, it's tougher to win," he said. The Barnett case "is a national building block," he said. Merck & Co. faces 16,000 lawsuits alleging that Vioxx caused heart attacks and strokes, with 2,400 of them consolidated before Los Angeles County Superior Court Judge Victoria G. Chaney. The Barnett case was the second in federal court. Merck prevailed in the other, also in New Orleans in February.

The pharmaceutical firm won the first California case on Aug.2. Jurors said afterwards that they were swayed by Merck's presentation of medical evidence. Attorneys were not permitted to speak with the New Orleans jurors after the verdict.

Merck held a national teleconference Thursday to respond to the verdict, which defense counsel plans to appeal. "We don't think the evidence supports those verdicts," said Ted Mayer of Hughes Hubbard & Reed, a member of Merck's national defense team.

Lead defense attorney Phil Beck of Barlit Beck Herman Palnchar & Scott said that they would first file motions to set aside or reduce the award. "If the judge lowers the damages, plaintiffs can either accept that or have a new trial on the issue of damages only," he said. An appeal would be based on insufficient evidence and the incorrect application of legal standards, defense counsel said. Beck noted that the Barnett case, with a sympathetic plaintiff with a history of long-term Vioxx use - 33 months before his heart attack and two years after - was the plaintiffs' side's top pick.

Nine Vioxx cases have gone to trial. Merck had prevailed in five, but received a setback Thursday when Atlantic City Superior Court Judge Carol Higbee vacated a defense verdict Merck had won in November in the case Frederick Humeston, 60, who had a heart attack in 2001.

Higbee, who has 5,000 Vioxx cases consolidated in her court, based her decision on new depositions and a New England Journal of Medicine "statement of concern" published after the Humeston trial that said Merck had withheld heart-attack data from the public and didn't correctly state data from a study previously published in the medical journal.

Mayer said that the defense has said previously it disagrees with the journal and that the facts in the statement of concern were known before the Humerston trial. They were presented in court, he said, and the jury returned a defenses verdict having considered them.

At a teleconference, the Merck defense again reaffirmed its strategy of defending cases one-by-one, and dismissed the idea of settlement. The company has set aside $1 billion for legal fees.

Three federal cases are set for the fall, all in the Eastern District of Louisiana, one with a Sept. 11 start date, the next slated to beign Oct. 30 and the third scheduled for Nov. 27.

The next California Vioxx trial is calendared for Oct 31 in Los Angeles County Superior Court. Robinson, Calcagnie Robinson has racked up a number of significant wins in faulty automobile design and "rollover" cases.

The firm was co-counsel in the 1999 Anderson v. General Motors exploding fuel tank case, which yielded a $4.9 billion verdict, and Mark Robinson Jr. served as co-counsel in Grimshaw v. The Ford Motor CO., winning an unprecedented $128 million verdict in 1978. He also litigated the $3.3 billion Los Angeles County tobacco settlement.