Merck/Vioxx trial. Round three starts next week.

Well, everyone gets a nice long weekend, Thanksgiving dinner, and then it's right back to the battle on the Vioxx litigation.

A few crucial items of interest occurred on this next set of cases opening up in Judge Eldon Fallon's court room in Houston, TX as the first of the federal MDL cases commence.

First, it is generally acknowledged, or at least is being reported, that the cases facing Merck are among the weakest so far, and as such the facts, evidence and science, not to mention Federal evidence standards, seem to favor Merck in this next round. However, the plaintiffs hand was strengthened by a ruling by Judge Fallon that denied Merck's motion to not allow evidence in regarding the short term effects on cardiac incidence, and therefore creates what will no doubt be another major battle over the science and evidence surrounding the "short duration" cases. As you will no doubt recall the Humeston case, that recently went for Merck up in NJ, was a so called short duration case and Merck prevailed in that particular case in convincing the jury that their were enough doubts on short term effects, and thus decided for the defendants.

In the case scheduled to start next week, the estate of Richard Irvin contends that his use of Vioxx resulted in his fatal heart attack and that their evidence on short term use will back that up. What the science and evidence of those short term studies reveals will go a long way in determining whether or not short term usage cases will fall by the way side, or if they will continue on as a major component of cases going forward in the litigation. Both sides are relying on the same studies and evidence, but in the words of Judge Fallon, "the simply interpret it differently, and reach contrary conclusions."

The key to this segment of cases, is Judge Fallon. Many a settlement has come about because of a Judge who knows how to run a court room, control lawyers, and focus the case, or cases to the crucial elements. If you read this account in the Wall Street Journal, it verifies what many of us already know, and that is Judge Fallon is probably the single best choice to handle Vioxx and knows how to shape the selection of cases to determine, what if any hope there might be for a settlement of this massive litigation. His work on Propulsid is encouraging and we can only hope he gives the plaintiffs a fair shot at presenting a broad range of cases so the value of each can begin to be fleshed out.

Of course the wild card now is that so many attorney's are peeling off from the MDL to join the "gang of ten" that the ability of any judge to fashion a global settlement is going to be severely compromised. However, this is the next best hope and we will be following it closely.

Posted on November 25, 2005 .