In what is now the third consecutive verdict in favor of Merck in the ongoing Vioxx litigation, a California jury yesterday returned a not guilty verdict on the primary question of did Vioxx cause the heart attack of plaintiff Stewart Grossberg. Despite being able to document over 300 doses of the drug prior to his heart attack, the jury simply felt that the other risk factors that were present in the plaintiffs medical history, specifically arterial blockage that was documented prior to the use of Vioxx, were too overwhelming to ignore.
Of course the legal team for Merck once again made a point of saying this verdict further validates their strategy of fighting the litigation one case, one trial, at a time. Spoken like a true hourly defense firm, if I can be just a bit cynical. Merck set aside $1 billion just for legal defense, and I guess if I was in the position of the defense firm i'd have a strong belief in the one case, fight it for years strategy myself. However, i've been on record as saying a case by case defense is potentially disastrous for Merck and it's shareholders, as each trial is a classroom and indication of what juries are accepting and what they are ignoring, and I think it is only a matter of time before the trial lawyers find the formula for sustained success on these cases.
I thought the jury remarks that were reported, that they didn't feel there was a case that was ever made between Vioxx and heart attacked, or that the plaintiff never met the burden of proof, or even more damning, that "the plaintiffs focused too much on marketing issues" indicates the trial lawyers need to get a better grip on demonstrating the medical/chemical link on causation. To simply focus on the marketing abuses, which are readily apparent, to the apparent exclusion of stronger evidence of the tie between the drug and cardiac incidents, is clearly a recipe for failure. I'm not saying that was the intent of plaintiff counsel in this case as I wasn't there, but if thats what the jury foreman is saying, it would make sense for trial lawyers to listen and adapt. Marketing abuse is great for punitive damages, but lets prove the case beyond a reasonable doubt first.
A prediction. Many lawyers for Vioxx plaintiffs have been going to school on these first cases, are recalibrating their arguments and evidence, and the next round of cases will once again tilt back in favor of the plaintiffs injured through use of this drug, but only if they get back to proving causation first and stop focusing on marketing abuses and conspiracy theories.