NEW YORK – The next big battle over Vioxx takes place in New Orleans, a city mired in its own conflicts with nature, the government and itself.
The retrial of Merck v. Plunkett is scheduled to begin Monday in New Orleans—less than two months after a trial, presided over by U.S. District Judge Eldon Fallon in Houston, ended in a hung jury on Dec. 13.
The Big Easy is Fallon’s judicial headquarters, but his entire court was displaced to Texas for the first federal trial due to the damage inflicted by Hurricane Katrina last summer. Fallon, who has consolidated thousands of Vioxx-related lawsuits under federal litigation, wants to stay in New Orleans for the duration.
But is this possible? Will the court be able to assemble a jury from the flood-ravaged city, which saw hundreds of thousands of its residents scattered across the country following Katrina’s destruction?
“I’ve heard through the grapevine that it is going to be difficult to put a jury pool together, and I don’t know if they’re going to be able to get one,” said James McHugh, head of the mass tort department for The Beasley Firm, which represents about 500 plaintiffs who sued Merck in New Jersey state court and about 50 plaintiffs in federal court.
Evelyn Irvin Plunkett of St. Augustine, Fla., sued Merck for the 2001 death of her husband Richard Irvin, who took Vioxx, an arthritis painkiller, for about one month before his fatal heart attack. Merck pulled Vioxx, worth $2.5 billion in annual sales, off the market in 2004 after a study showed links to heart attacks and strokes in patients who took the drug for at least 18 months. However, Merck has said consistently that Vioxx did not cause anyone’s death.
Plunkett’s case is one of thousands consolidated in federal court, though thousands of suits have also been filed against Merck in the company’s home state of New Jersey as well as other state courts. At last count, the Vioxx-related cases against Merck totaled 9,650.
One loss, two wins
Merck lost its first case in Texas but won the second in New Jersey. The third case was Plunkett’s mistrial. A fourth case is ongoing in southern Texas.
In a fifth case in New Jersey on Jan. 30, state Superior Court Judge Carol Higbee shot down the lawsuit from plaintiff Edgar Lee Boyd with a summary judgment. Court documents say Boyd failed to show that he was injured by Vioxx.
Lawyers are trying to gauge what kind of jury pool they’ll get in a post-apocalyptic city where the poor neighborhoods located near burst levees were emptied, but more affluent neighborhoods on higher ground remained, more or less, intact.
“I would expect they’re going to have real difficulty putting a jury pool together,” said Jeff Cooper, managing partner for Simmons Cooper, a firm representing about 800 plaintiffs who have sued Merck in New Jersey state court. “If people are back in New Orleans, they’re going to be rebuilding their homes or businesses or both. ”
Though many residents have left New Orleans forever, others have decided to come back, and still more potential jurors are moving to the city for the first time. This could harm efforts to assemble a jury pool, or help them, depending on who you talk to.
“I don’t think they’re going to have a difficult time assembling a jury,” said Phil Anthony, chief executive officer of DecisionQuest, a trial consulting firm. “While there are a number of citizens who’ve been displaced, there are also a number of jurors who have moved back in.”
To further complicate projections of a jury pool, New Orleans’ beating from nature isn’t over. On Thursday morning, the city was lashed with severe rainstorms that tore part of the roof off a concourse at Louis Armstrong International Airport and collapsed a house in a hurricane-damaged lakefront neighborhood. Also, a tornado reportedly touched down in the city.
So when, or if, the court manages to assemble a jury, the jurors might not be in the greatest of moods.
‘Angry at a lot of things’
“The citizens of New Orleans have been through enormous displacement and generally speaking they’re bursting at the seams with anger,” said Anthony of DecisionQuest, who has defended drug companies but is not involved in the Vioxx trials. “They’re angry at a lot of things. They’re angry at no one in particular and everything in general.”
Also, jurors might not want to spend weeks sitting in a trial “at a point in their lives where they’re trying to rebuild their lives and careers,” said Anthony, who said this creates a “dangerous concoction” for Merck.
Some experts believe that jurors frustrated by the government’s incompetence in preparing for and responding to Hurricane Katrina might channel their frustrations against Merck and see the drug maker as an enemy, even though Merck had nothing to do with the storm.
“This is a group of people who really feel that not only the government, but corporate America, has really bailed out on them,” said Cooper of Simmons Cooper, referring to troubles that residents have had with insurers.
Merck will also have to contend with an editorial from The New England Journal of Medicine. Right after the non-sequestered jury began deliberations in the first Plunkett trial, the prominent medical journal published an editorial reporting that Merck deleted information regarding Vioxx-related deaths from a study it provided the journal in 2000. Merck denied the claim.
“Merck and the authors did everything in a proper scientific manner,” said Merck spokesman Kent Jarrell.
Fallon’s court verified Thursday that Dr. Gregory Curfman, an editor from the Journal of Medicine, will testify at the retrial. McHugh of The Beasley Firm said this could bode badly for Merck.
“You have Merck saying we submitted the right data; you have the plaintiff saying they didn’t,” said McHugh, who compared the lawsuit to a traffic case, with an eyewitness acting as tie-breaker. “And then you have the most prestigious medical journal in the world saying ‘No, Merck, you ran the red light.’”
Merck spokesman Jarrell said that Fallon has told both sides that a fair jury will be selected, and selection will begin Monday. The plaintiff’s lawyer, Andy Birchfield of Beasley Allen, was not permitted to comment on the case, according to his firm.