Merck Gets Walk

The first federal case involves a claim by Evelyn Irvin Plunkett, on behalf of her late husband Richard Irvin Jr., who died from an apparent heart attack. He took Vioxx for about a month. Frazier said there is "no scientific link" between Irvin's death and Vioxx.

Three other federal trials are scheduled for February, March and April. Two more Texas state court trials are slated to start in March and April.

But a lot will depend on each plaintiff's case whether in state courts or federal courts. Theoretically, the worst plaintiff vs. Merck would be an otherwise healthy person, with no history of heart disease, who took recommended doses of Vioxx for more than 18 months, and who suffered cardiovascular injury or death.

The 18-month cutoff represents the guideline that Merck cited in the clinical trial that prompted the company to remove Vioxx from the market on Sept. 30, 2004. Patients who took Vioxx for less than a year and a half didn't exhibit statistically significant cardiovascular risks from patients who were given a placebo.

The Vioxx risk only showed up after long-term use, according to Merck's research. Critics say other tests showed that Vioxx exhibited signals of cardiovascular risk much earlier than 18 months.

Neither the Texas plaintiff nor the New Jersey plaintiff used Vioxx for 18 months. The late Robert Ernst, whose family sued and won in Texas, took the drug for eight months. Humeston took Vioxx for two months.

Frazier said he had "no reliable information" on how many plaintiffs took Vioxx consistently for more than 18 months. He added that it is "my strong belief" that most plaintiffs took the drug for less than 18 months.

Many analysts said Merck appeared to have a stronger case in New Jersey than in Texas, but as the seven-week trial dragged on, some worried that the company's legal strategy in the Garden State was similar to its tactics in the state trial it lost.

New Jersey is an important state for Merck, because around 2,750 Vioxx cases have been filed there. Another 2,800 cases have been filed in federal courts, and the rest have been filed in other state courts.

Merck's lawyers clashed periodically with the judge in the Atlantic City case. State Superior Court Judge Carol Higbee is expected to hear a number of other Vioxx-related cases.

Frazier said he "respectfully disagrees" with some of the judge's rulings, especially those restricting how much information jurors could hear about the FDA's analysis of risks linked to short-term use of Vioxx and other pain relievers.