Ruling May Hurt Merck in Federal Trial
By LINDA A. JOHNSON
TRENTON, N.J. – On the eve of the first federal trial over the withdrawn painkiller Vioxx, experts say a key pretrial ruling has worsened the prognosis for drugmaker Merck & Co., which vows to fight thousands of Vioxx product liability lawsuits one by one.
U.S. District Judge Eldon Fallon ruled Nov. 16 that plaintiff lawyers in the trial starting Tuesday in Houston may present evidence that brief Vioxx use can trigger heart attacks and strokes, rejecting Merck’s motion to throw out the case for insufficient evidence. The case involves a 53-year-old St. Augustine, Fla. seafood distribution manager, Richard Irvin, who had a fatal 2001 heart attack after just a month on the former blockbuster arthritis pill.
Legal experts say Fallon’s ruling blocked Merck’s effort to squelch the roughly one-fourth of federal lawsuits involving short-term Vioxx use.
"It leaves Merck stuck with every dad-gum one of those cases," said Houston lawyer Mark Lanier, who in August won a $253.4 million verdict for the widow of a short-term Vioxx user in the first Vioxx trial.
Merck now will have to fight each short-term case in court or settle it, said Fordham Law School Professor James A. Cohen.
Meanwhile, more Vioxx lawsuits are being filed against Whitehouse Station, N.J.-based Merck – at least 7,875 cases as of Wednesday, and Merck extended the deadline on about 3,000 more not yet filed but facing a one-year statute of limitations.
Also, Merck’s Nov. 3 victory in Atlantic City in the second state Vioxx trial is under appeal. There, the jury ruled Merck provided adequate warning of risks linked to Vioxx and so wasn’t liable for plaintiff Frederick "Mike" Humeston’s September 2001 heart attack.
His lawyer, Chris Seeger, said Friday he filed a motion for a new trial on Wednesday, alleging the trial was unfair because of misconduct by Merck lawyers and juror bias – one juror referred to Seeger’s legal team as "barracudas."
"I would think our chances are pretty good," said Seeger, who is the lead plaintiff counsel for the Vioxx lawsuits pending in New Jersey and co-lead counsel for the consolidated federal suits.
Merck, the world’s No. 5 drugmaker, pulled Vioxx from the market in September 2004 when its own study showed the painkiller could double risk of heart attack or stroke if taken for 18 months or longer.
Two company spokesman declined Friday to comment on the impact of Fallon’s ruling, citing a gag order Fallon imposed until the Irvin case concludes. Merck officials previously have said there’s no reliable evidence of cardiac risks when Vioxx is taken for shorter periods.
Plaintiff lawyers dispute that.
Fallon is overseeing at least 2,900 federal Vioxx cases consolidated in what’s called multidistrict litigation to speed up and standardize pretrial evidence gathering. He’s scheduled three more federal trials after the Irvin case, then plans to meet with lawyers on both sides to discuss a global settlement for all federal Vioxx litigation.
In New Jersey, Superior Court Judge Carol Higbee is overseeing more then 4,225 Vioxx cases filed in Merck’s home state. She has said that after presiding over one case involving short-term use, she wants the next several cases to involve Vioxx use for at least 18 months.
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