The tally of lawsuits against Merck & Co. in state and federal court over its painkiller Vioxx is nearly 5,000 and growing, lawyers said in federal court here Thursday, less than a week after the drug maker suffered a stinging defeat in a state court in Texas.
The implications of the loss in the first of the case to be tried against Merck are still playing out. But at a routine monthly meeting here lawyers — and U.S. District Court Judge Eldon Fallon — made it clear they expect the number of cases against Merck will grow.
In federal court alone some 1,800 cases have already been filed and Fallon suggested that number could eventually double, or even triple. Federal cases have been filed all over the country, but have been consolidated here because of Fallon’s expertise in dealing with complicated, large-scale court fights.
Fallon reiterated his straightforward strategy for attacking this mass of litigation. He’s asking the lawyers on both sides to pick representative cases from four categories of complainants including, potentially, stroke and short-term users of Vioxx. The first of the plaintiffs has already been chosen: a heart-attack victim from Florida, Richard Irvin Jr., who died in May 2001, one month after he began taking Vioxx for back pain.
The Irvin case starts here Nov. 28, and it will be followed by trials on Feb. 13, March 13, and April 10, 2006, Fallon said. Before the first federal case, however, Merck must weather a trial in New Jersey state court next month and possibly one in Texas in October.
The New Jersey case, involving a 60-year-old Boise, Idaho, postal worker who survived a heart attack after taking Vioxx briefly, is to start in Atlantic City on Sept. 12. Merck filed a motion late Wednesday asking the judge to postpone the trial’s start for 45 days, and Superior Court Judge Carol E. Higbee is expected to consider the motion next week.
Lawyers for Whitehouse Station, N.J.-based Merck are arguing the huge Texas damage award “has caused such a media blitz that the specter of unfair prejudice compels Merck” to seek the delay.
“The likelihood of it being granted is about one in a million,” Chris Seeger, the attorney for postal worker Frederick “Mike” Humeston, said Thursday.
Analysts have already criticized Merck’s strategy in the Texas case, where a jury awarded $253.4 million in damages to the widow of Bob Ernst, who died in 2001 of irregular heart beat, or arrhythmia, after taking Vioxx for eight months. Observers said Merck’s case was potentially strong — no evidence has so far linked Vioxx to arrhythmia — but that during the trial the company relied too heavily on scientific arguments, neglecting human ones.
Merck plans to appeal that verdict, which is certain to be reduced. But it is unclear what lessons, if any, will be drawn from it for the Irvin case. “Our strategy here is to defend the case on the issue of causation,” Merck lawyer Phillip Wittmann said Thursday, after the hearing.
“We believe the science will carry the day,” Wittmann said. He suggested that the tone in the courtroom, as well as some of the evidence allowed, will likely differ considerably from the Texas case.
“Some of the evidence we saw in Ernst, we won’t see here,” Wittmann said, citing what he said was “hearsay” and “spontaneous outbursts” in the Texas case.
Fallon has been praised for keeping tight deadlines and wanting to move the cases along.