Serious blow to Merck as judge allows damaging testimony

We had reported earlier that damaging testimony by Maria Araneta may prove disastrous to Merck’s defense. In a serious blow to the company, Judge Hardin is allowing Mark Lanier, attorney for Carol Ernst to present her testimony to the jurors. Merck has tried to block her from testifying before the jury on the basis of a lame argument that they were not told about her being a witness prior to the start of first ever Vioxx trial in the United States.

Merck has been arguing all along that Robert Ernst did not die from a heart attack, but Araneta has testified that he actually did die from a heart attack. The decision by Judge Hardin clearly helps the case of Carol Ernst. If Merck loses this case, it will be a big setback to Merck’s position that Vioxx was not a dangerous drug and it did not kill even a single American (though FDA estimates that tens of thousands of Americans have died after taking Vioxx). Due to this inconsistency, Merck is being targeted with over 100,000 lawsuits.

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The dynamics of a legal trial is unpredictable as is happening in the first-ever trial of a Vioxx lawsuit brought by widow Carol Ernst against Merck. According to potentially damaging testimony for Merck, a former medical examiner, Maria Araneta, who conducted autopsy on Robert Ernst is saying that he actually did die of a heart attack. Merck is desperately trying to stop her testimony being presented to jurors. If that were to happen, there is not much left to argue in this case. (Related article: Vioxx killed Robert Ernst, according to cardiologist)

In remarkable display of his legal skills, Mark Lanier, the attorney for Ernst, according to CNN, was also able to get a confession from Nancy Santanello, Merck’s top researcher, that Merck did not change Vioxx label despite being aware of a higher cardiovascular risk and that the company also tried to push the FDA to let the heart attack risk be displayed in a less prominent place. (Related article: Merck did not want Vioxx label changes)

Lanier may also be helped by the testimony of Brown University professor David Egilman, who also argued that Vioxx was so unsafe a drug that he never prescribed to his patients.

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Did Vioxx kill Robert Ernst, whose widow Carol Ernst has decided to take on Merck, in the first ever Vioxx lawsuit to go on trial. According to AP, when asked by plaintiff’s lawyer Mark Lanier if he believed Vioxx was a significant contributing factor in Robert Ernst’s 2001 heart attack or sudden cardiac death, Dr. Isaac Wiener replied, “I would call it sudden cardiac death and I would answer yes.”

While Merck, which intimidated and discredited any one who criticized Vioxx or even questioned its safety, will try to attack Dr. Wiener, but he is no ordinary doctor. He is actually the co-director of Cardiac Arrhythmia Center at UCLA Medical Center in Los Angeles. It is important to note that Robert Ernst died due to arrhythemia, and not a heart attack, and Merck has been arguing that Vioxx was therefore not responsible for his death. Testimony from Dr. Wiener attacks the fundamental argument of Merck lawyers.

In the meantime, another controversy involving Dr. M. Thomas Stillman (a doctor at University of Minnesota) is evolving. When he discussed some of the dangers or Vioxx in 1999, according to Jeremy Olson of St. Paul Pioneer Press, Merck abruptly cancelled a series of lectures by him that it was sponsoring. In Merck internal emails now made available, Merck declared another Vioxx critic as a “vocal adversary.” And interestingly enough, there was another common link in this story – Louis Sherwood, a vice president at Merck at that time. Sherwood is accused of destroying the promotion prospects of a Harvard professor, Lee Simon, who also criticized Vioxx.

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