Kathleen Hermans Messerschmidt, who filed suit on behalf of her brother, Brian Hermans, will not be able to continue the case against Merck into the second phase of the trial, which will determine whether another Vioxx caused the heart attack of another plaintiff, Frederick Humeston. The court is hearing the two cases simultaneously.
The jury has already found that Merck did fail to warn Mr Humeston’s doctors of the risks of Vioxx. The different verdicts are tied to the timing of a Vioxx label change that included additional health risk warnings. Merck had altered the Vioxx label five months before Mr Hermans suffered his fatal heart attack, but the change came after Mr Humeston’s heart attack.
As a result of the verdict, the estate of Mr Hermans will not be able to seek compensatory or punitive damages in the second phase of the trial, which will address the claim that Mr Humeston’s prescribing doctor would not have prescribed Vioxx had his doctor been warned differently. It also will address whether Vioxx was a substantial contributing factor in his heart attack.