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Fresh from a win in New Jersey state court, Merck & Co. returned to Texas this week for the first federal trial of a Vioxx case, just 45 miles north of where a Texas state court jury handed the first Vioxx plaintiffs a $253 million verdict last summer. At this juncture in the ongoing litigation, the vital question is: Who’s got the edge? Some legal observers say that stricter federal rules and procedures involving the admission of evidence, jury selection and what lawyers can say in front of a jury give Merck, manufacturer of the painkiller Vioxx, the advantage in the trial, which began Tuesday. Still others say the parties need to try more cases to assess the parameters of the litigation. Peter Bicks, a mass tort defense litigator in the New York office of Orrick, Herrington & Sutcliffe, who is not involved in the Vioxx litigation, said that he expects “tighter rules on medical evidence, tighter rules on what lawyers can get away with saying in court” and key differences in the way the jury will be picked in federal court. However, John Brenner, a partner at McCarter & English in Newark, N.J., who successfully defended Novartis Consumer Health Inc. in phenylpropanolamine litigation, said that he draws no conclusions from the first two cases tried. “From a thousand miles away, [the first federal Vioxx case] looks like another short-exposure case like the [New Jersey Vioxx case] that just got tried in Atlantic City. The variable is, what’s the jury going to look like?” he said. New Jersey juries “tend to be a little skeptical and they pay pretty close attention to the truth,” Brenner said, such that “Merck knows going in that they may not win, but they’re going to get a fair shot.” The next significant benchmark of the litigation will be the first trial of a longer-term Vioxx user, Brenner noted. This federal trial and the first two state trials have involved short-term Vioxx users. Melvyn Weiss of Milberg Weiss Bershad & Schulman in New York is not involved in Vioxx litigation but represents plaintiffs in the securities class action against Merck, Pringle v. Merck & Co. Inc., 03-cv-3125 (E.D. La.). He sees the litigation now “going into the middle rounds” in which better science in terms of causation and the alleged negative aspects of Merck’s marketing practices will help the plaintiffs. Once there have been a fair amount of test cases before a range of judges in several jurisdictions, the parties will have a good idea of what the cases are worth, and be ready to sit down to a sensible global resolution, Weiss said. “If Merck is smart, they might do it sooner rather than later,” he said, because it has a lot at stake with this litigation and faces a potential for billions of dollars in exposure in the securities and third-party payer cases. “I wouldn’t be sanguine about the outcomes,” Weiss said. Both Kent Jarrell, a spokesman for Merck’s defense team, and Libby Rayborn, administrative assistant for lead plaintiff’s lawyer Jere Beasley of Beasley, Allen, Crow, Methvin, Portis & Miles of Montgomery, Ala., said that the parties would respect U.S. District Judge Eldon Fallon’s request not to discuss the case before the verdict. However, at a news conference last week, Beasley and co-counsel Andy Birchfield Jr. criticized Merck’s experts and gave their views of the case. They represent Evelyn Irvin Plunkett, whose husband, Richard “Dicky” Irvin Jr., died in May 2001 from a heart attack, purportedly as a result of taking Vioxx for about a month to alleviate back pain. The case is Plunkett v. Merck, 05cv4046. Beasley and Birchfield claim that Fallon already has given them favorable rulings despite Merck’s representations that the judge would not accept “our experts and liability theories,” and that the results of their client’s autopsy also “are favorable to our position on causation.” In addition, the plaintiffs plan to use Merck’s own studies to show that the company’s statement that a patient would have to have taken Vioxx for a minimum of 18 months to increase the risk of heart attacks is a “myth … Merck has manufactured to avoid liability. It’s a myth � not science,” Birchfield said in a statement. However, Orrick’s Bicks said that, based on what he has seen reported of the case going to trial, he expects that the federal standard for the admissibility of scientific evidence will give the plaintiffs in this case “a challenging test to pass.” Those standards, established by the U.S. Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), help federal courts determine the reliability of scientific theories or techniques based on criteria obtained through testing, peer review, error rates and acceptability in the relevant scientific community. “What you will probably see is a barrage of pretrial Daubert motions to strike the plaintiff’s medical causation case,” he said. In addition to tighter evidence rules, federal procedural rules also are a lot tougher, Bicks said, adding that he expects Fallon to “put a much tighter clampdown on argumentative tactics.” For instance, statements such as that by plaintiffs’ lawyer W. Mark Lanier to a Brazoria County, Texas, jury in the first Vioxx trial to “send a message to Merck” will be “less likely to fly in federal court,” Bicks said. Another key difference in the federal trial, Bicks said, will be the “very active role” federal judges play in picking juries in contrast to state court judges who tend to let the lawyers have more of a hand in it. He added that the pool of potential jurors will likely be different. “A significant difference between what happened in New Jersey and in Brazoria County [Texas] was the jury selection. The jury in Brazoria County was younger and less educated than the New Jersey jury, which included a teacher, a prosecutor and the wife of a surgeon. They were more educated and their average age was over 40,” Bicks said. Brenner of McCarter & English said that despite where a case is tried, the key is what happens in front of the jury in the courtroom and the extent to which the plaintiff’s personal history resonates with them. “You can talk about the science and what Merck allegedly was doing, but when you’re talking to a jury, they want to know what happened to that person. … At the end of the day, they want to know whether the plaintiff was injured by the drug,” Brenner said. And then comes client relations. Weiss noted that Merck’s New Jersey win counterbalanced the $253 million plaintiff’s verdict in Texas because it will help plaintiffs’ lawyers deal with their client’s “exalted expectations.” “Even though it looked bad for the plaintiffs’ bar, it will have a very therapeutic effect,” Weiss said, explaining that such a loss helps lawyers “to reduce their clients’ expectations to something more realistic.” Peter Geier is a reporter with The National Law Journal, a Recorder affiliate based in New York City.

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