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The next Vioxx product-liability case to come to trial in New Jersey will likely be a tougher battle for manufacturer Merck & Co., which two weeks ago got its first courtroom victory in a case involving short-term use of the now-withdrawn painkiller. New Jersey Superior Court Judge Carol Higbee, who is overseeing about 3,500 Vioxx lawsuits filed in New Jersey — half the suits filed to date — has told attorneys she wants the next group of trials to involve plaintiffs who took the drug for 18 months or more. Plaintiffs lawyers said the judge appears to want to determine how such cases will play out in an attempt to encourage the settlement of some lawsuits. Whitehouse Station, N.J.-based Merck has admitted Vioxx doubled risk of heart attacks and strokes after use for 18 months or longer; it pulled the blockbuster arthritis pill from the market in September 2004 after its own research showed that. Cases with such long-term use will be harder for Merck to defend, although plaintiffs still have the heavy burden of proving Vioxx caused them harm, plaintiffs lawyers say. “If there’s any case that should truly be indefensible, it’s the 18 months and over (case) because Merck has conceded that,” said lawyer Chris Seeger. Seeger said he is eager for another shot at Merck after losing to the drugmaker when an Atlantic City jury on Nov. 3 ruled against his client, who had taken Vioxx for two months before having a heart attack. Seeger said he will soon file a motion for a new trial — admittedly a longshot — based on signs the jury was biased in favor of Merck, including post-verdict juror comments that the plaintiff survived and shouldn’t be complaining, and that Seeger and his lawyer colleagues were “barracudas.” The plaintiffs in the first Vioxx trial, which ended in August with a $253 million jury award to the widow of a Vioxx user in Texas, and next one also took Vioxx for just a few months. The next trial is set for federal court in Houston on Nov. 29. Plaintiffs lawyers said Higbee’s announcement at a conference last week that she wanted to next see “more representative cases” appears to set the stage to push Merck to begin settling some cases to avoid years and years of Vioxx trials in her courtroom. “There’s going to be a point, if we actually have to try every case, where we’re going to have to take some drastic measures,” Higbee said, according to a transcript. The judge told the lawyers that could include going to the head of New Jersey’s Administrative Office of the Courts to “tell him I need 50 judges from the state, and I need 50 Vioxx trials to start the same day.” Merck officials insist they intend to fight each lawsuit individually, although general counsel Kenneth Frazier at one point said Merck might consider settling some cases involving long-term Vioxx use. Ted Mayer, a spokesman for Merck, said Friday that the company has always expected to try cases involving use of 18 months or more. “We believe we have a strong story to tell in these cases,” he said. “We do want to work with the judge on an orderly and fair process to set cases for trial.” Lawyer Mark Lanier, who won the Texas trial, said Higbee appears to want to get a handle on how cases involving long-term Vioxx use, which represent about 60 percent of the cases on her docket, will play out. “She made it very clear that her job is to find justice” in each case, Lanier said, “and she can’t do that moving one case at a time for the rest of her career.” Lanier said lawyers whose clients took Vioxx for 18 months or longer, when they get to trial, will stress that Merck’s own lawyers have admitted “Vioxx causes heart attacks after 18 months.” “Merck’s going to have to eat those words,” said Lanier, who has about 250 cases pending in New Jersey and plans to file up to 1,800 more there. Plaintiffs lawyer James J. McHugh Jr., who has 500 Vioxx lawsuits filed in New Jersey and expects to file up to 1,500 more there, said he still thinks cases involving short-term Vioxx use are winnable, partly because one Harvard study showed cardiac risks developed within 30 days of Vioxx use. “It would be reckless to Merck shareholders if they did not start settling cases and they are continually tagged with verdicts” against them, McHugh said. Higbee has set the next conference on scheduling cases for Thursday. Copyright 2005 Associated Press. All Rights Reserved. This material may not be published, broadcast, rewritten, or redistributed.

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