Kenneth Frazier: Merck’s Vioxx Strategy Is To Defend Each Case, Not Settle

On November 3, 2005, Merck’s General Counsel Kenneth Frazier commented on the New Jersey Vioxx defense verdict in the Humeston v. Merck case, which the jury handed down just hours earlier.

During a six-minute conference call with reporters on November 3,*** Merck’s General Counsel said the Humeston verdict "indicates that we can defend these cases, and we do not intend to roll over in these cases when people bring insubstantial claims into court to collect money from Merck."  Consistent with that message, Mr. Frazier said that Merck will defend itself case-by-case "over whatever period of years" it will take.

While you you are listening to Mr. Frazier give Merck’s position on what the Humeston verdict means to the Vioxx litigation going forward (by use of link above), we thought you might want to look at the jury’s findings in this New Jersey Vioxx trial.

• Counts regarding failure to warn of Vioxx risks:

1. Did Merck fail to adequately warn physicians of the link between Vioxx and higher risks of heart attack and stroke, which it knew or should have known about before Frederick "Mike" Humeston’s heart attack? — Verdict: NO by an 8-1 vote.

• Counts regarding failure to warn of Vioxx risks:

1. Did Merck commit consumer fraud "by using unconscionable commercial practices" when marketing Vioxx to physicians? — Verdict: NO by a 9-0 vote.

2. Did Merck "make misrepresentations that had the capacity to mislead concerning the cardiovascular risk of Vioxx" while marketing Vioxx to physicians? — Verdict: NO by a 9-0 vote.

3. Did Merck "intentionally suppress, conceal or omit material information about an association between Vioxx" and increased risk of heart attack and stroke? — Verdict: NO by a 9-0 vote.

Technically, in this first New Jersey Vioxx trial the jury did not vote on whether Vioxx was a cause of Mr. Humeston’s heart attack, since the jury had decided — before getting to the medical causation issue — that Merck acted responsibly in selling Vioxx. There were remarks by several jurors published in news reports about the Humeston verdict, however, which indicated that the jury would have voted "NO" on this aspect of the case, also.

The bottom line, though, is the defense verdict in Humeston does not mean that Merck, in fact, acted responsibly as regards Vioxx.  Rather, the defense verdict for Merck means only that in this particular Vioxx case the plaintiff did not convince the jury that Merck should be held liable for his heart attack in 2001.

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(Posted by: Tom Lamb)