The strangely silent Vioxx trial.

One of the most striking aspects the current Vioxx trial is just how little national press it has been receiving compared to the prior trials in Houston, New Orleans, Angelton, TX and New Jersey. Obviously those were the first trials out of the box, and after the earthquake inducing verdict from Attorney Mark Lanier in the first trial where he brought in a verdict of $256 million against Merck, the company has vigoursly defended their product in three subsequent trials that all came in with decisions in favor of the defendants.

 The current NJ trial in Atlantic City has lacked some of the explosiveness of prior trials where we saw weeping plaintiffs, heated verbal exchanges between lawyers, and in one case a judge threatening  to remove a lawyer who refused to sit down when ordered to cease their verbal objections to a judges order. However, after a few phone calls and scanning the news wires the general consensus of how it's proceeding is as follows:

1. The plaintiffs in the case, Thomas Cona of Cherry Hills, NJ and John McDarby of Park Ridge, NJ, have presented largely believable and sympathetic testimony to a jury which has been described as "working class" and more plaintiff friendly then the prior NJ trial. They both claim Vioxx use of over 18 months and subsequent heart attacks or cardiac's issues as a result of the extended usage.

2. Merck has hammered home in their cross of plaintiffs and their physicians that prescription records show a clear gap which would seem to indicate they didn't take Vioxx continuously during that period. Each plaintiff has testified, as have their personal doctors, that they were provided substantial free samples of Vioxx as is the norm in many medical practices, thus accounting for the gaps. Regardless, Merck has pounded that issue over and over and has clearly made it a center piece of their defense, along with allegations that each man had other risk factors that brought on their heart attacks. Plaintiffs counsel correctly responded with those other risk factors, if Merck had disclosed the cardiac risk of Vioxx, would have certainly prevented them from using the drug, and highlighted just how irresponsible the company was to keep their data hidden. The theme of the plaintiffs in this long use trial is one of "Merck new the risks, had the data, fought the FDA to keep the data hidden, and as a result people such as Cona and McDarby were clearly exposed to a danger that they and their doctors didn't know existed, but Merck did."

3. Starting this week, Merck began it's defense case, and has brought in a line up of medical and pharmaceutical experts to contend that they were open and honest with the FDA, bringing out Merck VP and research scientist Dr. Briggs Morrison to testify that the company in fact told regulators prior to launch that they had concerns about the long term cardiac risk. The defense will obviously try to counter the perception that it hid evidence and facts regarding the risks of the drug, so that profits wouldn't be harmed.

 It is expect that the defense will wrap up it's case early next week, at which time it will be sent to a jury to see what the out come will be. Make no mistake about it, this is a high stakes, incredibly important trial in this ongoing litigation, and a loss on the long exposure cases such as these will be a serious set back for the plaintiffs in cases all over the country. The teaming up of Mark Lanier and the lawyers at Weitz and Luxemborg brings some serious legal and financial resources, so it's a best case scenario under current conditions for the plaintiffs. While the media is ignoring this case, I'm not, and we will keep bringing you the relevant news as it occurs.

Posted on March 23, 2006 .