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Merck's future rides on jury verdict
If Merck loses an Atlantic City trial on the health effects of its Vioxx painkiller, its troubles will get much worse. The verdict could come this week.
By Jim Jubak
If Merck can't win a Vioxx trial in New Jersey, it can't win anywhere.
Now that the closing arguments have closed in the Atlantic City, N.J., trial pitting the company against postal worker Frederick "Mike" Humeston, the company's future is in the hands of the six women and three men on a jury that could render a verdict this week.
Even if the company loses, the monetary damage to Merck (MRK, news, msgs) from this one case isn't likely to be anywhere near the $253 million verdict brought in against the company by a Texas jury in the first Vioxx trial. New Jersey state product-liability laws cap damages at a relatively low level.
But a loss by the Whitehouse Station, N.J.-headquartered pharmaceutical giant on its home turf, in a state where the legal system favors Merck, and in a trial where the company's lawyers have outperformed the plaintiff's team, will send trial lawyers around the country into a filing frenzy. And it will send Merck's stock further into the tank. (It's down 56% since June 2003 and 21% since May 4.)
After Merck's Texas defeat in August, the number of Vioxx lawsuits filed against Merck jumped from 4,200 at the time of the trial to 6,400 at the end of September. One estimate (granted, from a team of plaintiff lawyers) estimates that an additional 20,000 cases would be filed in state courts around the country if the verdict in New Jersey goes against Merck. A jump like that -- or even one that just matched the increase after the Texas verdict -- could send Wall Street projections of Merck's potential Vioxx liability soaring well above the $38 billion that now marks the peak of analyst damage assessments. (The low-ball Wall Street estimate puts Merck's liability at $5 billion.)
Much in Merck's favor
Why is winning one trial in New Jersey so important to Merck's future? Because the playing field in New Jersey is about as favorable as the company is going to get in any Vioxx trial. Here's how the odds in this trial favor Merck.
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The plaintiff's case is weak. Humeston, a 60-year-old postal worker from Boise, Idaho, contends that Vioxx caused his heart attack even though he had used Vioxx for only two months. If the data does indeed show an elevated risk of cardiac events in patients taking Vioxx -- and there's certainly expert testimony on both sides of that question -- it shows the heightened risk in patients taking Vioxx for 18 months. As one of Merck's experts put it, there's no "significant evidence" that Vioxx is a risk factor when taken for less than three months. In contrast to the Texas trial, where the case was brought by a grieving widow of a 59-year old athletic husband, Mike Humeston is still alive. That has let Merck raise questions about how much Humeston's own behavior contributed to his heart attack. Shortly before his heart attack, Merck has pointed out; Humeston was involved in a stressful dispute with his employer.
The New Jersey jury is paying attention to the science. How do we know? Because in the New Jersey system, jurors are allowed to ask questions of witnesses -- actually, they submit questions to the judge, who asks them -- after the lawyers are finished. Many of the questions have involved clarification of scientific issues and medical terminology. In Texas, the jury seems to have tuned out the scientific testimony early in the trial, according to post-trial analysis by both sides in the case. That destroyed any chance Merck had to convince jurors that it had conducted valid risk studies for Vioxx before taking the drug to market. In Texas, the trial hinged not on science but on the emotional formula of widow against big, evil, profit-hungry corporate giant.
Merck's lawyers aren't facing Mark Lanier. In the Texas case, lawyer Lanier ran circles around Merck's legal team. The charismatic Lanier came across as a down-to-earth Texan. That helped him with his message to the jury of "send them a message." Lanier knew the community and values of these jurors. They were highly religious, for example, and began their deliberations each day with a silent prayer. Lanier himself is a part-time Baptist minister. In contrast, Merck's team, from such national powers as Houston's Fulbright & Jaworski, Washington's Williams & Connolly and New York's Hughes Hubbard & Reed, came across as the hired gunslingers of a far-distant and unfeeling corporation. Lanier also just plain out-lawyered Merck's team. The Texas trial may have hinged on the testimony of Marie Araneta, who had performed the autopsy on the plaintiff's body. Merck presented the coroner's death certificate, which stated that the plaintiff had died of an arrhythmia, as conclusive proof that he had not died of a heart attack. But then in a videotaped deposition, Araneta testified -- for Lanier -- that she had never ruled out a heart attack as the cause of the plaintiff's arrhythmia. It turns out that Merck's lawyers had never bothered to interview the coroner; Lanier had.
In New Jersey, Merck may have the better lawyers. Merck certainly isn't facing any pushover. Plaintiff's attorney Chris Seeger is fresh off a June victory over Eli Lilly (LLY, news, msgs), in which he won a $690 million settlement in a case involving Lilly's anti-psychosis drug Zyprexa, and he's the lead plaintiff's lawyer for 2,475 Vioxx lawsuits pending in New Jersey. But in Merck defense attorney Diane Sullivan, the drug company has someone who can more than hold her own. Sullivan repeatedly has been willing to push the envelope. On the trial's first day, she earned Judge Carol Higbee's rebuke for reminding the jurors that Merck was a hometown New Jersey company. She has made repeated attempts -- with partial success -- to get a long U.S. Food and Drug Administration memo (saying that Vioxx doesn't appear to cause heart attacks in short-term users like Humeston) in front of jurors. On occasion, she's made Higbee look hostile to Merck. That can't hurt with jurors, who might sympathize with the company if they think it is not getting a fair hearing, and it lays the grounds of a future appeal if the verdict goes against the company.
New Jersey legal rules favor corporate defendants like Merck. Under the state's product liability law, to win punitive damages the plaintiff needs to prove that the company knowingly withheld or misrepresented information material relevant to the harm in question. So much of the New Jersey trial has hinged on what Merck told the FDA. If Merck passed along all reliable, relevant data to the agency and the agency approved the drug without seeking a warning label, that would go a long way to making the drug giant's case. (Which is also why Sullivan fought so hard to get the FDA memo in front of the jury.) Even if Merck loses, the New Jersey system requires a separate proceeding, with jury -- to set punitive damages. The one part of the New Jersey law that Merck won't like, if it loses this trial, is a provision that requires the court to refer the case to state and local prosecutors to determine if Merck committed a criminal act.
Riding on the verdict
For these five reasons, the playing field is tilted in Merck's favor in Humeston v. Merck. If Merck loses despite that edge (or at least, that edge relative to the Texas trial), the consequences are immense.
First, 2,570 of the 6,400 of the Vioxx cases filed by the end of September have been moved to Judge Higbee's Atlantic City court. A loss in Humeston v. Merck will be a bad sign for Merck's ability to win these cases.
Second, while another 2,900 Vioxx cases have been consolidated in federal court, where the rules are much more favorable to defendants than they are in most state courts, a win in New Jersey will accelerate plans by lawyers for Vioxx plaintiffs to bury the company under a wave of state-court Vioxx cases.
A team of plaintiff lawyers, headed by Mark Lanier -- who else? -- and New York attorney Perry Weitz, are developing a plan to put 10 teams of lawyers to work in state courts, simultaneously. That would keep Merck in court constantly -- not an insignificant problem for a company that has set aside only $675 million for litigation expenses. It's not clear the strategy will work. Merck can move in state courts to have cases filed outside of New Jersey moved to federal court under most circumstances, but the aggressive tactics of plaintiff lawyers before the New Jersey verdict don't bode well for Merck if it loses the Humeston case in Judge Higbee's court room.
Trial lawyers are often compared to sharks. And we all know how sharks behave once there's blood in the water.
Updates
Sell L-3 Communications (LLL, news, msgs)
Like the stock, hate the sector. The problem is that the expectations for increases in the growth of the defense budget are coming down. Even the United States, apparently, can't afford to rebuild the Gulf Coast, expand drug benefits for seniors, fight a war in Iraq -- and grow the defense budget. Current Department of Defense plans call for spending an annual average of $563 billion (adjusted for inflation) in the years between 2011 and 2024. That's 34% more than the budget for the current 2006 fiscal year. A lot of that increase will be for Operations and Support budget, the budget that pays for wages and medical benefits for personnel. Something's got to give with the government facing pressures to cut the overall budget (or at least, not grow the deficit quite as fast) and with a bigger hunk of the defense budget being earmarked for wages and benefits. That something is likely to be spending on new advanced weapon systems. I think L-3 Communications will get more than its share of the defense put for upgrading communication equipment and adding security to existing systems. But the sector is likely to continue to be under selling pressure because of speculation about the need to cut spending on new systems. I don't like spitting into a sector's wind, so I'm selling L-3 Communications from Jubak's Picks. I have an 8% gain since I added the stock to the portfolio in February 2005. (Full disclosure: I will sell my personal position in L-3 Communications 3 days after this column is posted.)
New developments on past columns
Transport winners will keep on trucking
Burlington Northern Santa Fe (BNI, news, msgs) just keeps chugging along. On Oct. 25, the company reported third-quarter earnings of $1.09, a huge 9 cents a share above Wall Street expectations and an increase of 41% from the third quarter of 2004. Freight revenue climbed to a record $3.22 billion, up 18% from the third quarter of 2004. Pricing was even stronger this quarter than last, when higher prices resulted in an 11% jump in revenue per carload. In the third quarter, revenue per carload grew by 12% from the third quarter of 2004. Traffic volume (carloads) grew by 4.2%, just slightly less than the 4.4% increase in volume for the second quarter of 2005. The fourth quarter is typically the strongest revenue quarter of the year, so I think this stock has still got headroom. As of November 1, I'm raising my target price on Burlington Northern Santa Fe to $66 a share by March 2006 from the prior target of $64.
5 growth stocks for a weak-kneed rally
On Oct. 25, Pentair (PNR, news, msgs) dumped cold water all over its stock price. Earnings for the third quarter grew by 44% from the third quarter of 2004, but at 44 cents a share, it still came in two cents a share below expectations. Revenue at $716 million for the quarter was also light; Wall Street was projecting $730 million. Organic sales growth (that's sales growth after taking out the effect of acquisitions) came in at 7% as the water segment (at 5%) continued to struggle. But the third-quarter results weren't what sent the stock down by $5.46 a share for the day. That honor goes to guidance for the fourth quarter. The company told Wall Street to expect 40 cents to 42 cents for the quarter. That's quite a bit less than the 52 cents a share Wall Street had been expecting. For all of 2006, the company pegged earnings at $2.20 to $2.30 a share, below the $2.38 analysts had projected. All this is disappointing, to be sure. But even with this lower guidance, the stock is cheap -- if you believe management has a handle on its business, and I think they do. Guidance indicates earnings growth of 8.9% to 13.9% for 2006 at a projected 2006 price-to-earnings ratio of 14.2 to 13.6. As of Nov. 1, I'm lowering my target price to $36.80 a share by September 2006. (Full disclosure: I own shares of Pentair in my personal account.)
Editor's Note: A new Jubaks Journal is posted every Tuesday, Wednesday and Friday. Please note that Jubak's Picks recommendations are for a 12-to-18 month time horizon. See Jubak's CNBC Picks for shorter six month recommendations. For picks with a truly long-term perspective see Jubak's 50 best stocks in the world or Future Fantastic 50 Portfolio.
E-mail Jim Jubak at jjmail@microsoft.com.
At the time of publication, Jim Jubak owned or controlled shares of the following equities mentioned in this column: L-3 Communications Holdings and Pentair. He does not own short positions in any stock mentioned in this column.
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