So, as the dust settles after the second Vioxx trial, what conclusions can be drawn which will allow Insider (and the markets) to try and predict how Merck will fare in the future?
None!
Drawing conclusions from those polarized verdicts is "an exercise in futility," said Howard Erichson, a Seton Hall University law professor who has been following the case.
"Coming on the heels of Texas, everyone is going to want to speculate if it's a different state, different judge, different legal strategy, different set of facts presented by the plaintiffs," Erichson said of the New Jersey verdict. "While that all can be very interesting, it misses the basic message, which is litigation is unpredictable."
Well then, is it now possible to work out how much Merck will have to put aside for the Vioxx issue?
Er, I'm afraid not.
While Merck faces anywhere from $4 billion to $50 billion in liability from Vioxx claims, legal observers and financial analysts say it will take years for the true costs to emerge, particularly if the pharmaceutical company continues its strategy of fighting virtually all of the more than 6,000 cases filed so far.
But, lawyers must now be a little more sure about how the other cases will pan out as all the arguments have been gone over, right?
Wrong!
Houston lawyer Mark Lanier (above) said the strategy used in this case by the plaintiff's attorney was unsound.
"This lawyer didn't make marketing and Merck's deceptions on science the center of the case," said Lanier, whose client in August won the $253 million wrongful death suit against Merck after a jury blamed Vioxx for the death of her husband. "And that was a mistake because that's the most compelling part."
Lanier said the lawyer instead chose to focus too much on medical problems experienced by the plaintiff.
"I think first you have to educate the jury about the drug, what Merck knew, when Merck knew it, what Merck did with its knowledge," Lanier said.
A majority of the jurors in the Angleton trial said Merck's aggressive marketing of Vioxx led to their decision to award Lanier's client, Carol Ernst.
During the trial, some observing plaintiffs lawyers said that Humeston's lead attorney, Christopher Seeger, erred in putting emphasis on the complicated scientific issues, rather than on marketing practices. They also criticized the decision not to call David Egilman, a Brown University epidemiologist who had been expected to testify that scientific studies showed risks from short-term Vioxx use.
A point Insider raised in previous posts. There were times in this trial that Insider thought the plaintiff was in the dock, rather than Merck!
One final thought:
"Everyone knew from the beginning that this was a difficult medical case and that Merck would present a vigorous and well-orchestrated defense focusing on the plaintiff," said spokesman Christopher Placitella of Cohen, Placitella & Roth in Red Bank.
"There will be wins and losses during the course of this litigation for both sides, depending upon the facts as presented in individual cases."
Placitella noted that the first six asbestos cases were lost before asbestos companies' conduct was fully explained. "That is not the case here. One jury has already found the drugmaker's conduct so reprehensible that they awarded $250 million," he said. "The liability evidence introduced was compelling."
http://www.law.com/jsp/article.jsp?id=1131012312488
http://www.chron.com/cs/CDA/ssistory.mpl/business/3437691
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