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By Peter Geier

The National Law Journal

04-20-2006

The split verdict in the first trial of a pair of long-term Vioxx users' cases against Merck & Co. would support its strategy of battling each claim rather than settling the more than 10,000 cases, litigators say.

Although an Atlantic City, N.J., jury said that the Whitehouse Station, N.J., pharmaceutical giant failed to adequately warn John McDarby, 77, and Thomas Cona, 60, of the heart risk factors of taking Vioxx, it awarded $13.5 million to McDarby and sent Cona home with only the $45 he had paid for the product. Both were long-term users of the drug. The latest results bring the trial tally to two wins apiece.

Peter A. Bicks, a products liability litigator in the New York office of Orrick, Herrington & Sutcliffe who is not involved in Vioxx litigation, said that "Merck's clearly going to keep taking these cases into the courtroom."

The length of the recent jury's deliberations in the punitive damages phase and the public comments that jurors made afterward suggest that "the case was close and winnable for Merck," Bicks said.

"Most juries would have been in and out of there in a couple hours. [This jury] deliberated for a day and a half over less than a day's worth of evidence and a very straightforward question to be resolved, after they already had deliberated on liability for some time," he said.

"If Merck tightens up its jury selection method and trial strategy, it can and should be able to win most of the cases, in my view," Bicks said. He added that it also remains to be seen what the conservative Texas appellate courts will do with Houston plaintiffs lawyer W. Mark Lanier's blockbuster $253.4 million win last August -- the first Vioxx verdict, reduced by state caps to $26 million.

John F. Brenner, a partner at McCarter & English in Newark, N.J., who defended Novartis Consumer Health Inc. in phenylpropanolamine litigation, said that "Merck could have hoped for a happier result, but I would be surprised if it changes its overall strategy."

Brenner said that he expects that Merck is looking to see how numerous appellate issues will work out in New Jersey, where at least 5,000 cases are pending. He also agrees with Bicks that the cases are close. "Merck has a good story to tell and it already has convinced jurors. I don't think this verdict will modify that, or that it really should modify that," Brenner said.

But Bryan O. Blevins, a national asbestos plaintiffs litigator at Provost & Umphrey in Beaumont, Texas, said that plaintiffs beginning with two wins out of four doesn't give Merck, its shareholders or insurers "anything to cheer about.

"The verdict value of one win is substantially greater than negotiating the settlement of 10 cases at arm's length," Blevins said, pointing out that Merck takes a hit on the stock market with each plaintiffs verdict. "No one expects Merck to roll over," Blevins said, but at some point, it will make an educated decision on whether to start resolving cases or to pay a substantial amount to defense firms to represent it.

Merck remains committed to addressing Vioxx cases one by one over the coming years, according to spokeswoman Casey Stavropoulos.

"The recent split decision in New Jersey and our previous victories in federal court and New Jersey, reaffirms our strategy of defending the litigation on a case-by-case basis," she said.