As with the baseball season, Merck & Co.’s defense of the Vioxx litigation is a marathon and not a sprint (previous posts here). Yesterday’s sprint was not good for Merck, but my sense is that it’s still way too early to write off Merck’s defense strategy as a failure at this point.
The bad news for Merck was that a federal jury in New Orleans awarded $51 million to a former FBI agent who was taking Vioxx when he suffered a heart attack, while a New Jersey judge threw out a verdict in Merck’s favor from a trial there last fall. The NJ judge has a reputation of being plaintiffs-friendly, so that ruling was not all that much of a surprise and, despite the federal venue of the New Orleans trial, New Orleans is still a plaintiffs-friendly environment. After a year of Vioxx trials, the scorecard reflects that Merck and the plaintiffs each have four victories, and there are at least another eight or so Vioxx trials scheduled in both state and federal court through the end of this year.
Ted Frank, who has been following the Vioxx litigation closely, has the best analysis of yesterday’s developments in the overall context of the Vioxx litigation (see also here and here). Peter Lattman also has an interesting post in which he includes an email exchange with Houston plaintiff’s lawyer, Mark Lanier, who was the first lawyer to hammer Merck in a Vioxx trial.