Opening arguments in the next Vioxx liability trial start Monday as Merck & Co. faces the lone lawyer who has beaten the company in one of these cases — this time representing two long-term users of the painkiller who say it caused their heart attacks.
So far, two juries have found Merck not liable, while Mark Lanier, a flamboyant Texas lawyer, helped secure a $253 million judgment for the widow of a Vioxx user last August.
The trial, set to begin next week in New Jersey Superior Court in Atlantic City, marks the first involving plaintiffs who took the painkiller for more than 18 months.
Merck withdrew the arthritis drug from the market in September 2004 after a study showed the risk of heart attack and stroke doubled in patients who took Vioxx for at least 18 months.
The company, based in Whitehouse, New Jersey, faces nearly 10,000 lawsuits from people accusing it of hiding health risks of a medicine that once generated annual sales of $2.5 billion.
In earlier trials, Merck maintained there was no evidence of heightened risk for short-term Vioxx users.
“The length of exposure is a critical issue in these cases,” Howard Erichson, a law professor at Seton Hall University, said. “The scientific evidence on causation is stronger for long-term use than short-term use, but that doesn’t mean the defendant just lays down.”
Lanier is representing Thomas Cona, a 59-year-old New Jersey businessman who says he took Vioxx for 22 months prior to suffering a heart attack in June 2003.
The other plaintiff, John McDarby, 77, says he took Vioxx for four years and had a heart attack in April 2004 after a fall in which he also broke his hip.
“I think what you are going to see is that the plaintiffs are going to have a difficult task showing that Vioxx caused their heart attacks,” Chuck Harrell, one of Merck’s attorneys in Atlantic City, said. “Each of them had multiple pre-existing risk factors that are well known to cause heart attacks.”
Both men had a history of high blood pressure and high cholesterol and were smokers, Harrell said.
In court documents, Merck, citing prescription records, has also argued that Cona was not even a long-term user of Vioxx.
Some even say the outcome of the trial could hinge on the performance of Lanier, a gifted attorney and preacher who has won hundreds of millions of dollars in damages for his clients in product liability cases.
“Only one out of four juries was able to reach a conclusion that Merck had withheld important information about Vioxx even though they all received similar factual records,” Benjamin Zipursky, a professor at Fordham University School of Law, said.
“One obvious conjecture is that Mr. Lanier has the ability to present these facts in a way that is highly persuasive to the ordinary people sitting on juries,” he said.
Still, there is some doubt about whether Lanier’s folksy Southern style will play in Atlantic City, where an eight-woman and two-man jury was selected to hear the case.
“With trial lawyers, rapport with the jury is very important,” Howard Erichson, a law professor at Seton Hall University, said. “An out-of-state lawyer may find it more difficult to connect with a jury, but it’s all about preparation.”
Merck is based in New Jersey, but its lead attorney in the case is Christy Jones, from the Jackson, Mississippi, firm of Butler, Snow, O’Mara, Stevens & Cannada.
The trial is expected to last three to four weeks, an attorney for Merck said.