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Deliberations Continue in Vioxx Case

Jurors hearing the second liability trial over withdrawn painkiller Vioxx (search) resumed deliberations Wednesday morning, sifting through evidence as they decide whether Merck & Co. (search) misled the public about the drug's safety and whether it caused an Idaho man's heart attack.

After seven weeks of testimony, the state jury — a six-woman, three-man panel — got the case Tuesday afternoon following Superior Court Judge Carol E. Higbee's (search) instructions on the legal issues involved and deliberated for about an hour before heading home.

The jurors have hundreds of documents and testimony from 21 witnesses — enough to fill 5,764 pages of trial transcript — to consider.

Frederick "Mike" Humeston, a 60-year old postal worker from Boise, Idaho, took the drug for about two months before suffering a nonfatal heart attack in September 2001.

His case is one of about 7,000 lawsuits brought against the Whitehouse Station-based drug company, which pulled the prescription painkiller off the market last fall after a study showed it doubled the risk of heart attack and stroke after 18 months' use.

Merck lost the first trial over Vioxx when a Texas jury awarded $253 million in damages to the widow of a Vioxx user. Texas law requires that award to be cut to no more than $26 million. The company plans to appeal.

The first charge the jury will consider is whether Merck failed to adequately warn doctors of the association between Vioxx and increased risk of heart attack and stroke, which it either knew or should have known about prior to Humeston's heart attack.

If jurors find Merck failed to warn of the risks, they would then decide whether they believe Vioxx contributed to Humeston's heart attack. A decision that Vioxx was a key cause would lead the jury to set compensatory damages for both Humeston and his wife, Mary.

If the jury awards compensatory damages, there would be a separate trial to determine a punitive damage award. New Jersey has no cap on compensatory damages, but punitive damages are capped at five times compensatory damages. Lawyers from both sides said such a trial would be very short and would begin soon, but the judge has not announced specific plans.

Even if jurors decide Merck did adequately warn doctors, they still must consider a second charge: whether Merck committed consumer fraud in its marketing of the drug to prescribing physicians by giving them misleading information or omitting certain information about Vioxx risks.

The most jurors can award Humeston if they find that Merck committed such fraud is the $30 he paid toward the cost of his Vioxx prescriptions. If he wins the consumer fraud portion of the case, he is entitled to receive attorneys' fees, which the judge would determine.