Merck’s Attorney Phil Beck Put On Just Four Defense Witnesses In Vioxx Trial

On December 8, 2005 the plaintiff and defense lawyers in the third Vioxx trial, Irvin / Plunkett v. Merck & Co., made closing arguments and, thereafter, the case went to the jury for deliberations.

In a change of tactics, Merck’s defense team, headed by attorney Philip S. Beck, presented just four witnesses over two days during the Irvin / Plunkett trial.  In a somewhat surprising move, Phil Beck chose not to present any testimony by a cardiologist to counter the plaintiff lawyers’ contentions that Vioxx caused the May 2001 heart attack which killed Richard "Dicky" Irvin.

During the defense presentation, Merck’s attorneys called to the stand a rheumatologist, two Merck scientists, and a pathologist.  The approach taken by this Merck defense team in the Irvin / Plunkett trial had two primary parts.  First, Merck put on witnesses who took issue with the plaintiff lawyers’ allegations that Merck knew Vioxx could cause heart attacks and strokes but took steps to conceal this information from the FDA and doctors.  Second, Merck presented medical testimony that Mr. Irvin’s fatal heart attack was not caused by his relatively short-term use of Vioxx.

Here is a summary of what Merck’s four witnesses said in this first federal Vioxx trial.

• Dr. David Silver, a rheumatologist and associate professor at University of California at Los Angeles, testified that the benefits of Vioxx outweighed its risks.
• Dr. Briggs Morrison, a vice president of research at Merck, testified that testified there was no clinical evidence that Vioxx could cause heart attacks and strokes when Vioxx was approved by the FDA in 1999.
• Dr. Alise Reicin, another vice president of research at Merck, testified that Merck kept defending Vioxx’s safety because Merck looked at several studies over time and drew the conclusion that Vioxx did not cause heart attack.
• Dr. Thomas Wheeler, a pathologist and the interim head of Baylor College of Medicine’s pathology department, testified that Mr. Irvin’s sudden death was caused by plaque that ruptured in an artery, and that Mr. Irvin had pre-existing heart disease.

In the two earlier state court Vioxx trials, two different teams of defense attorneys for Merck put on the witness stand leading cardiologists who testified that Vioxx was not the cause of the respective plaintiff’s heart problem.  While Merck’s lawyers in the Irvin / Plunkett case did not call a cardiologist to the stand , the defense team did show jurors an April 2005 memo from an FDA advisory committee which concluded that COX-2 inhibitors — the class of drugs to which Vioxx belongs — generally do not appear to increase the risk of heart attacks and strokes when taken in low doses for short periods of time.

During the trial jurors heard that Mr. Irvin took 25mg Vioxx pills for less than a month in an attempt to relieve his back pain.

Now, we have to wait and see whether this relatively quick Vioxx trial is, likewise, followed by a quick verdict from the jury who heard the competing evidence.

(Posted by: Tom Lamb)