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A Double Whammy for Merck

Odds are several summer vacations came to an abrupt halt yesterday as Merck & Co. lawyers and executives scrambled to assess the damage from two major setbacks in Vioxx lawsuits yesterday. Reactions from lawyers suggest that, while the New Orleans jury's award of $51 million may deliver the more visible bruise, the New Jersey ruling that Merck withheld information is more likely to bring about Merck's eventual knock-out. As Christopher Seeger, lawyer for the plaintiff in the New Jersey case, explained it:

"Merck consistently said throughout the trial that you had to be on Vioxx for 18 months to be at increased risk of a heart attack, and that was false. They had data that people were having heart attacks within weeks."

Seeger was not the only Vioxx lawyer to weigh in on yesterday's news. Law Blog sought reaction from Texas plaintiffs lawyer Mark Lanier, who won a $253 million verdict against Merck last year. Here is what he replied:

"I’ve said from the beginning in a toxic tort case the company should win the first ten. That Merck has now lost four is HUGE. As trials continue and time goes on, more evidence comes to light, more depositions are taken, and Merck’s defense gets tougher and tougher. After the first ten, Merck will lose three for every four they try. This is the start of something huge for Merck."

Another legal blog, A Georgia Lawyer, asked for reaction from another plaintiffs lawyer, C. Andrew Childers. Here is his comment:

"Although both results were very important, I believe the New Jersey Order was even more significant than the New Orleans verdict.

"Judge Higbee's Order shows Merck's continuing pattern of deception and lies, not just in the labeling and marketing of Vioxx, but all the way through the trial of the Humeston case. Merck has continued, in my opinion, to lie about what it knew about the dangers of Vioxx and when it knew of such dangers."

At PointofLaw.com, Ted Frank found the verdict in New Orleans to be logically inconsistent and said that Merck will challenge it on those grounds. But, he added:

"[T]hey're likely to be disappointed: the remedy for an inconsistent verdict is to ask the jury to return to deliberations to reconcile the inconsistency before they're dismissed."

Even with yesterday's one-two punch, Merck remains even in the count. Before yesterday, it had won five trials and lost three. Yesterday's loss in New Orleans adds another to the loss column, and the overturned verdict in New Jersey removes one win, putting Merck's win/loss score at an even 4-4.

Posted by Robert J. Ambrogi on August 18, 2006 at 02:45 PM | Permalink | Comments (0)

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