(Bloomberg)—A New Jersey judge is trying a new tactic to help clear 5,100 lawsuits off her docket, as the latest trial over Merck & Co.’s Vioxx painkiller started yesterday.
Superior Court Judge Carol Higbee, hearing her second Vioxx case, imposed time limits and is using a chess clock to enforce them, in an attempt to finish the trial in half the time her first one took.
Higbee is allotting 40 hours to lawyers for Thomas Cona, 59, and John McDarby, 77, to present evidence to jurors that Merck knew the dangers of Vioxx and failed to warn of them. Merck will have 35 hours to make its case that Cona and McDarby had heart attacks because of pre-existing health conditions rather than the drug.
"There’s no question the cases will get shorter as time goes on, simply because people will recognize which facts are most important and which issues should be focused on,” Higbee said last week in an interview at her chambers in Atlantic City, New Jersey. It’s the fifth Vioxx case to go to trial.
Higbee, who oversees half of the almost 10,000 U.S. Vioxx cases, will play a central role in helping decide whether Merck must pay billions of dollars in potential damages. Merck withdrew Vioxx from the market in 2004 after a study showed that it doubled the risk of heart attacks and strokes after 18 months of use. Merck, the third-largest U.S. drugmaker, vows to fight each case and has set aside $970 million for legal costs and nothing for liability.
The judge borrowed the chess clock from Cona’s lawyer, Mark Lanier. Her law clerk began timing Lanier when he called his first witness, David Anstice, a Merck president. Lanier won a $253 million verdict in the first Vioxx case to go to trial, an amount that will be reduced to $26 million under state law.
Merck, based in Whitehouse Station, New Jersey, has gone to trial five other times. Merck won two cases, after one ended in mistrial and was retried. Another case is pending in state court in Texas. All four were brought by Vioxx users who took the drug for a few months or less.
The Cona and McDarby trial is the first involving patients who claim to have taken Vioxx for at least 18 months. Higbee plans two more trials in suits by five Vioxx users claiming long-term use.
In litigation involving hundreds of people making a similar injury claim, Higbee said, "you typically choose cases that can be tried that can hopefully produce information about how jurors react to various types of information. The goal is to give knowledge to both parties about the strengths and weaknesses of their cases.”
Higbee, who has been on the bench for 12 years, is one of three New Jersey judges handling personal-injury cases with many plaintiffs. Her caseload includes lawsuits involving patients claiming injuries by Roche Holding AG’s Accutane and Pfizer Inc.’s Bextra and Celebrex.
She said she can’t force Merck and the Vioxx patients to reach out-of-court settlements.
"Ultimately, whether the cases are settled or not depends on the parties,” Higbee said. "The courts can’t impose settlements.”
Higbee faces an enormous challenge in the Vioxx litigation, said Marina Corodemus, a retired New Jersey judge who was the state’s first jurist devoted to such multiple-plaintiff cases.
"Organizational skills are very important,” Corodemus said. "You’re managing not just the cases in front of you but the future cases on an incredible scale. It challenges the judge to call for unique solutions to manage the case, to try it, and to look for resolution.”
Merck attorney Chuck Harrell said that each case has to be tried individually because the patients have different medical histories and physicians. Cona and McDarby must prove general and individual causation, he said.
"Even in long-term use cases, the plaintiffs are going to have to show that it was this drug and not their pre-existing risk factors and medical conditions that caused their heart attacks,” said Harrell, of Butler, Snow, O’Mara, Stevens & Cannada, a law firm in Jackson, Mississippi. "That’s just going to be a steep hill for these plaintiffs to climb.”
Lanier is expected to focus on Merck’s marketing of the drug, as well as company scientists’ response to concerns about the safety of Vioxx, which was introduced in 1999.
"I’m an underdog here because we’re in Merck’s backyard and Merck always says they can’t be beat here,” he said. "It always takes five to 10 cases before you really learn” how to try them.
An attorney not involved in the case, Victor Schwartz, said that Merck is the underdog because of having to defend against two plaintiffs at the same time.
Challenge for Defense
"I can’t overstate how challenging that is in trials,” said Schwartz, of Shook Hardy & Bacon LLP. "It just makes the strategy on the defense side very difficult. You’ve got to separate people but not go to the point where you look like you’re making excuses all the time.”
He said Lanier, considered one of the nation’s top plaintiffs’ lawyers, will reprise his effort, begun at the first trial, of “trying to put emotion up against facts.”
"It’s a showcase in whether Merck can show that they acted in a morally correct way and that they did not put profits over people’s safety,” Schwartz said.
The cases are Cona v. Merck & Co., L-3553-05 and McDarby v. Merck & Co., L-1296-05, Superior Court, New Jersey (Atlantic City).