Only 6 million individuals took Wyeth's diet drugs while 20 million Americans took Vioxx. That has led some observers to believe Vioxx's payout could be larger.
"I'm pretty confident we can show Vioxx caused my client's heart attack," said Birchfield, a partner at Beasley, Allen, Crow, Methvin, Portis & Miles in Montgomery, Ala. "There is a population that really shouldn't have been prescribed Vioxx especially because it was more likely to cause heart attacks and strokes."
Merck general counsel Kenneth C. Frazier said heart attacks happen frequently in the general population and there are numerous factors, including obesity and age, that increase the risk.
"These cases are not a slam dunk," said Frazier. He said when all the facts are before a judge it will be clear that "Merck acted responsibly every step of the way."
"It would be pretty callous of Merck to say these are old people and they were going to get heart attacks and strokes anyway. That is not going win them any points with a jury," said Arnold Levin, senior partner at Levin, Fishbein, Sedran & Berman in Philadelphia, which has filed two cases against Merck and is preparing another 38.
Plaintiffs' lawyers must also prove that Merck knew Vioxx could cause heart attacks and strokes but minimized the drug's side effects while marketing it. They might find support for their case in documents that have come to light recently.
Birchfield and other lawyers said they have documents that prove Merck knew about Vioxx's problems long before they became public and that the company engaged in a campaign to mute the risks once they began emerging.
The Wall Street Journal reported this week that sealed court documents suggest Merck understood Vioxx's dangers at an early stage. According to the newspaper, in a Feb. 25, 1997, e-mail Merck official Briggs Morrison said patients taking Vioxx in a clinical trial should also take aspirin, which has cardioprotective powers, because otherwise "you will get more thrombotic events" -- blood clots. In another e-mail, Merck's research chief Edward Schonick wrote to colleagues on March 9, 2000, saying the cardiovascular events "are clearly there."
Frazier said the documents were taken out of context, and don't reflect the evolution of thought on Vioxx as more data became available.
One central, public element to the plaintiffs' case is a 2000 study known as Vigor, in which patients taking Vioxx had five times the rate of heart attacks than those taking an older pain reliever, naproxen. Merck claimed Vioxx did not cause heart attacks and the company also contended that naproxen had cardioprotective benefits that prevented users from suffering heart problems. Plaintiffs' lawyers said this contention was an attempt to downplay Vioxx's risks.
