Is Merck angling for a mistrial knowing their defense is doomed?

That's the question being posed and discussed among lawyers who have watched the most recent Vioxx trial in Atlantic City, NJ in the second major case brought to trial in this potentially massive litigation.

Friday's shouting match and threatened removal from the court room of a member of Merck's defense team was just the most recent example of the strained and contentious situation that exists between the defense counsel and Judge Carol Higbee. Early in the trial, Judge Higbee, had reprimanded Attorney Diane Sullivan for comments about plaintiff lawyers in front of the jury, and since then the defense team has filed six different motions seeking a mistrial, alleging the judge improperly allowed or failed to bar certain evidence. The judge it should be noted has denied each one of those motions.

While most neutral observers feel that Merck is putting on a far more effective defense this time around, and much of the "fighting spirit" exhibited by the defense team was in response to criticism that it had essentially laid back and let Attorney Mark Lanier take them apart on the first case in Texas. Still, despite that fight and increased energy level, the facts and evidence still don't favor Merck, and Attorney Chris Seeger has methodically presented his case so that once again Merck's legal team is fighting for it's life to try and sway the jury.

The comments I recived from those who witnessed the Friday confrontation, or read the transcripts, is that Merck knows they are in a corner once again, and that like any good attorney's, they are laying the ground work for their appeal if they are unsuccessful in obtaining a mistrial on this case. As I have stated from the beginning of these cases, I believe Merck has made a strategic error of a magnitude sufficient to destroy the company, by electing to defend these cases instead of entering into a global settlement and managing their liability in that fashion. There is zero chance that these cases will not result in a global settlement at some point, and the trials have only increased the eventual size of that settlement and encouraged the filing of more claims.

The financial community and institutional shareholders will sit still for one, maybe two more major verdicts, and at that point the share price and value of the company will be so substantially damaged that it will be crisis management to settle this, as opposed to the options that existed earlier this year before Merck embarked on their suicidal "try each case one at a time" strategy.  

Posted on October 9, 2005 .