Merck Verdict
A federal jury in New Orleans found that Merck's Vioxx was not responsible for a heart attack suffered by a Utah man. Merck had won two previous federal cases and lost the third. In state court it has won three and lost three. Jurors decided a fourth in Merck's favor, but the judge later ordered a retrial.
Plaintiff's lawyers had thought this trial was one of the better Vioxx cases. But, as often happens, the trial uncovered some interesting new evidence on cross-examination by Merck's lawyer: the Plaintiff realized he had not taken Vioxx for several days before his heart attack on July 25, 2003.
Rather than focusing on other reasons that likely caused Mason to have a heart attack -- his age, his sex, a relative who had a heart attack -- Merck's lawyer Phil Beck, an extremely good lawyer, focused his closing argument on the four days without Vioxx. "Vioxx cannot cause a heart attack if it is not in the system," he said. "Vioxx is out of the system in a few days. Once it's out of the system, it cannot have any effect."
As I have said all along, plaintiffs are going to lose most of these cases on specific causation. General causation is hard to dispute - the evidence is overwhelming that this was a bad drug and Merck covered up the risks associated with Vioxx. But the trick for plaintiff is to show that the harm was actually caused in an individual case.
Bookmark: 
Comments
I disagree with your commentary that the plaintiffs are going to lose most of these cases. I think plaintiffs' lawyers are getting their case down and you will see their win percent rise as Merck sticks to this absurd "try every case" strategy.
Posted by: Larry | November 22, 2006 8:51 AM
I don't completely disagree. The history of mass tort litigation is the plaintffs losing early and then their lawyers figuring out the case, figuring out what works, and coming back to greater success. Of course, in some cases - the latex glove litigation comes to mind - you just had losses, education of the plaintiffs' lawyers, and more losses.
But what I wanted to say in that post and ran out of time is that I do not think the litigation is without value; instead, I think the value may be in the billions. But that does not change the fact that in the average Vioxx case, I would bet on Merck.
Posted by: Ron Miller | November 22, 2006 8:58 AM