A win for Merck, but the jury sends a message.

In the latest Vioxx case tried in Judge Carol Higbee's Atlantic City, NJ court room Merck emerged victorious in their trial with plaintiff Elaine Doherty. According to both local and national news reports and summaries on the trial, Mrs. Doherty's health, pre-existing conditions and questions about duration of usage were just too big a hurdle for the jurors to side with the plaintiff.

Merck is clearly spinning this as a significant win, which in reality it is, since any victory for the company gives validity to their stated desire to try each case individually, and use the $1 Billion war chest they have set aside to finance this strategy. The Boston Globe sums it up nicely by stating that each win is essentially a means of reducing the inevitable global settlement that will be forced upon it by it's stockholders at some point, and that Thursday verdict in the Doherty trial allows them the hope of bringing the price down a bit. The Wall Street Journal online has an excellent case summary written by their stellar reporting team of Heather Won Tesoriero and Peter Loftus. At the bottom of the story is a chart outlining the verdicts for and against Merck in the Vioxx litigation that works as a nice score card in how this massive litigation is progressing.

However The Globe also points out something that several other national publications failed to point out in their stories and that is the very surprising fact that Judge Higbee allowed the jury to decide the issue of whether Merck failed to warn the plaintiff about the risks of Vioxx. This is a departure from the usual question as to whether or not the company failed to warn doctors or medical personnel about the risks of the drug. The jury found 7-0 that the company in fact did fail to warn the individual plaintiff/end user and in the word's of Mrs. Doherty's trial lawyer, Gene Locks, "this is a huge, major, precedential verdict for plaintiffs nationwide because this jury unanimously determined that Merck failed to adequately warn the users of this drug". Defense counsel objected to this charge being put to the jury, felt it never should have been allowed, but there now exists that precedent and I would expect this to get bigger headlines then the actual case verdict as the weeks go past.

It's a win for Merck but might ultimately be costly in the long run.  

Posted on July 14, 2006 .