Length of time using Vioxx seen key in Merck trial
By Anna Driver
NEW YORK (Reuters) – Opening arguments in the next Vioxx
liability trial start on Monday as Merck & Co. faces the lone
lawyer who has beaten the company in one of these cases — this
time representing two long-term users of the painkiller who say
it caused their heart attacks.
So far, two juries have found Merck not liable, while Mark
Lanier, a flamboyant Texas lawyer, helped secure a $253 million
judgment for the widow of a Vioxx user last August.
The trial, set to begin next week in New Jersey Superior
Court in Atlantic City, marks the first involving plaintiffs
who took the painkiller for more than 18 months.
Merck withdrew the arthritis drug from the market in
September 2004 after a study showed the risk of heart attack
and stroke doubled in patients who took Vioxx for at least 18
The company, based in Whitehouse, New Jersey, faces nearly
10,000 lawsuits from people accusing it of hiding health risks
of a medicine that once generated annual sales of $2.5 billion.
In earlier trials, Merck maintained there was no evidence
of heightened risk for short-term Vioxx users.
“The length of exposure is a critical issue in these
cases,” Howard Erichson, a law professor at Seton Hall
University, said. “The scientific evidence on causation is
stronger for long-term use than short-term use, but that
doesn’t mean the defendant just lays down.”
Lanier is representing Thomas Cona, a 59-year-old New
Jersey businessman who says he took Vioxx for 22 months prior
to suffering a heart attack in June 2003.
The other plaintiff, John McDarby, 77, says he took Vioxx
for four years and had a heart attack in April 2004 after a
fall in which he also broke his hip.
“I think what you are going to see is that the plaintiffs
are going to have a difficult task showing that Vioxx caused
their heart attacks,” Chuck Harrell, one of Merck’s attorneys
in Atlantic City, said. “Each of them had multiple pre-existing
risk factors that are well known to cause heart attacks.”
Both men had a history of high blood pressure and high
cholesterol and were smokers, Harrell said.
In court documents, Merck, citing prescription records, has
also argued that Cona was not even a long-term user of Vioxx.
Some even say the outcome of the trial could hinge on the
performance of Lanier, a gifted attorney and preacher who has
won hundreds of millions of dollars in damages for his clients
in product liability cases.
“Only one out of four juries was able to reach a conclusion
that Merck had withheld important information about Vioxx even
though they all received similar factual records,” Benjamin
Zipursky, a professor at Fordham University School of Law,
“One obvious conjecture is that Mr. Lanier has the ability
to present these facts in a way that is highly persuasive to
the ordinary people sitting on juries,” he said.
Still, there is some doubt about whether Lanier’s folksy
Southern style will play in Atlantic City, where an eight-woman
and two-man jury was selected to hear the case.
“With trial lawyers, rapport with the jury is very
important,” Howard Erichson, a law professor at Seton Hall
University, said. “An out-of-state lawyer may find it more
difficult to connect with a jury, but it’s all about
Merck is based in New Jersey, but its lead attorney in the
case is Christy Jones, from the Jackson, Mississippi, firm of
Butler, Snow, O’Mara, Stevens & Cannada.
The trial is expected to last three to four weeks, an
attorney for Merck said.