Merck recently lost the first lawsuit in ongoing Vioxx recall litigation. The plaintiff was Carol Ernst, who claimed successfully that Vioxx caused the premature death of her husband Bob Ernst. Mr. Ernst was a fitness addict and did not have any heart condition prior to taking the drug. Merck still tried to argue (unsuccessfully though) that Vioxx did not cause his death.
The company has a bigger challenge in the next trial scheduled to start September 12th in Atlantic City, New Jersey (NJ). While Robert Ernst was a marathon runner, Frederick “Mike” Humeston is a former Marine. A man who has always been in excellent shape, Humeston took the painiller for relieving pain from his war wounds during his time in Vietnam. While Mr. Ernst succumbed to the injuries from Vioxx, Humeston luckily survived but suffered a severe heart attack. Humeston now works as a postal worker in Boise, Idaho.
Merck had tried to delay the start of the trial citing huge negative publicity after its loss in Angleton, Texas. Not only did NJ Superior Court Judge Carol Higbee reject that motion, but also all other motions from the drugmaker. Like the previous trial, this is clearly not a great start for the company. Merck’s legal strategy has been widely criticized and the company may have listened to the criticism. After vociferously announcing for months that it will take each plaintiff one at a time, after its recent loss, the company is now interested in settling some cases.
Legal experts believe that as long as Chris Seeger, the attorney for Humeston, can use the same approach that Texas lawyer Mark Lanier used, Merck is likely to lose the case again. But since the decision by the jury in Texas, lawyers have had more time to study the approach used by both sides and have also been able to dig more internal documents implicating Merck. The company tried to disallow some of these documents from being presented during the trial but Judge Higbee rejected all of the demands.
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