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Merck Vioxx Litigation Score Card

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Message Evelyn Pringle
In the homestretch leading up to the latest trial in New Orleans, the score in the Vioxx litigation was 5 to 4 in favor of Merck. However, in mid-August, 2006, a New Jersey victory for Merck was thrown out reversing the score to 5 to 4 in favor of plaintiffs.

But none of the winning plaintiffs should count their chickens before they are hatched because according to Merck's SEC filing on August 7, 2006, although the company has set aside $685 for attorney fees and legal defense costs:

"The Company has not established any reserves for any potential liability relating to the Vioxx Lawsuits or the Vioxx Investigations, including for those cases in which a verdict or judgment has been entered against the Company, and are now in post-verdict proceedings or on appeal."

And furthermore, Merck states in its SEC filing, "At this time, the Company believes that its insurance coverage with respect to the Vioxx Lawsuits will not be adequate to cover its defense costs and any losses."

A New Orleans trial is now underway, and during his September 12, 2006, opening statement, the plaintiff's attorney, John Boundas, told the eight-member jury that Merck lost sight of the truth and patient safety, in the company's zeal to promote the blockbuster painkiller Vioxx

Mr Boundas, along with co-counsel Steve Kherkher, is representing plaintiff, Robert Smith, in the third federal case to go to trial.

US District Judge Eldon Fallon told the jury that he expects the trial to last 2 1/2 to three weeks, and will include half-days on Saturday.

Under the company's first top executive hired from the business rather than the medical community, Merck marketed a "dangerous, defective drug that never ever should have been prescribed, and never ever warned about the dangers," Attorney Kherkher told the jury.

According to Mr Kherkher, the doctor who prescribed Vioxx for Mr Smith, has said that about a half-dozen Merck sales representatives "would drum into him, 'Vioxx, Vioxx, Vioxx,'"

Mr Smith was taking Vioxx for pain resulting from a knee injured in a softball game in 1998.

All federal Vioxx product liability lawsuits have been consolidated and transferred to the US District Court for the Eastern District of Louisiana with Judge Fallon presiding.

Judge Fallon has informed attorneys on both sides that he plans to try 5 cases in 2006, selected from four categories to include: (1) heart attack with long term use; (2) heart attack with short term use; (3) stroke; and (4) cardiovascular injury that occurred after the labeling changes were made on Vioxx in April 2002, describing the results of the VIGOR trial.

After conducting the five trials, Judge Fallon has said he wants to work out a global settlement for the 5,700 federal Vioxx cases on his docket.

After the first trial, Judge Fallon had attorneys from both sides choose two more cases for trial in his court. Mr Smith's trial is the first case chosen by Merck. His case is a category 4 because he started taking Vioxx six months after the heart attack warning was added to the label.

As the trial was ready to begin, lawyers for the plaintiffs accused Merck of trying to sweeten the jury pool with an adverting campaign aimed at making people think better of the company. "Merck is going around the back door, hoping to get folks to forget about this killer drug and, instead, think a bunch of nice warm thoughts about the company that manufactures it," said Vioxx steering committee spokesman, Russ Herman, in a news release.

The first Vioxx trial took place a little over a year ago, and on August 19, 2005, a Texas jury awarded $24 million in actual damages, plus $229 million in punitive damages, to the widow of Robert Ernst, a Vioxx user who died suddenly in May 2001 at age 59, after taking Vioxx for 8 months.

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Evelyn Pringle is a columnist for OpEd News and investigative journalist focused on exposing corruption in government and corporate America.
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