Judge hands Merck a clear setback by ruling plaintiff may introduce expert testimony that even short-term use of Vioxx can pose serious cardiovascular risks.
Although Merck had some reason to be optimistic following its recent victory in New Jersey state court in the second Vioxx trial, that optimism was more the result of weaknesses in the plaintiffs case rather than a preponderance of the evidence in favor of Merck.
In the recent New Jersey case, there were a number of factors which favored Merck including: the plaintiff only took Vioxx for two months before his heart attack; he survived his injuries and actually appeared to be in surprisingly good health at trial; plaintiff had a number of serious (non-Vioxx) risk factors that could have caused his heart attack; the case was tried in Mercks home state; and Mercks trial attorney took every opportunity to make it appear as if the trial judge was being unfair to the drugmaker with her rulings. The jury also was not enthralled by plaintiffs trial attorney.
In determining which cases will be tried next in New Jersey, Judge Carol Higbee, who controls the progress of some 3,500 Vioxx cases pending in that state, has ordered the next 10 trials involve plaintiffs who took Vioxx for at least 18 months. The judge denied Mercks motion challenging that decision.
That ruling is significant in that Merck itself has already acknowledged the existence of an increased risk of heart attacks in long-term Vioxx users and even pulled the drug from the market for that very reason. Thus, legal analysts see Judge Higbees ruling as one that will make it very difficult for Merck to duplicate its recent victory in those upcoming long-term-use cases.
Thus, it was to Mercks advantage to try another short-term-use case on the heels of its victory since a second straight win could significantly change the dynamics of the ongoing litigation in favor of Merck.
That apparent advantage has vanished, however, now that U.S. District Court Judge Eldon E. Fallon has ruled that the plaintiff will be permitted to offer expert testimony that even short-term use of Vioxx carries with it an increased risk of cardiovascular problems including heart attack.
Judge Fallon based his decision on the fact that the very same scientific evidence is being interpreted differently by each sides highly qualified experts. Thus, there is no basis for the court alone to decide which experts are more credible or whether Merck has eliminated the issue of causation to the point where it should not be submitted to a jury for determination.
The trial that is scheduled to start Tuesday in Houston, Texas, involves the death of a 53-year-old man, Richard Irvin Plunkett, who took Vioxx intermittently for less than a month before he suffered a fatal heart attack. (The trial was moved from New Orleans due to the widespread damage caused by Hurricane Katrina).
The weaknesses that would have favored Merck have now been virtually eliminated. In addition to the admission of expert testimony regarding the risks associated with short-term Vioxx use, are these additional problems for Merck:
- the trial will be held in Texas where the first jury returned a $253 million verdict against Merck
- the decedent did not have the serious health problems the plaintiff in the last trial had
- this is a wrongful death case, which is far more serious in the eyes of a jury
- Judge Fallon presided over very similar MDL (multi-district litigation) involving the Johnson & Johnson drug, Propulsid, and thus has particular expertise in this type of complex pharmaceutical case
- Fallon is regarded as a stern, no-nonsense judge who has already made it quite clear that he will not tolerate the carnival atmosphere that prevailed in the last trial in New Jersey.
Judge Fallon has already instructed the attorneys during pretrial hearings that he didn’t “need ‘War and Peace’ ” from them, and discouraged unnecessary statements. He threatened to hold sessions in the evenings and on weekends to keep on schedule. He also cautioned both sides that he didn’t “want to hear from the defense how motherly or fatherly Merck is,” or from the plaintiff that the company “was trying to make a buck.”
It is Judge Fallons plan to try four representative cases he has chosen and to have those trials completed by April when he hopes to sit down with both sides to discuss a possible settlement of the MDL.
Since Judge Fallon has eliminated the short-term-use advantage Merck thought it enjoyed as well as the possibility that Mercks attorneys will turn the trial into a theatrical production, the upcoming federal trials will likely be tried on the evidence alone.
In that case, many legal analysts believe Merck will be hard pressed to convince the four upcoming juries in Texas of the safety of a drug it was forced to pull from the market in September 2004 for the very reasons it is now being sued.