Will Jury Verdict Be For Plaintiffs Cona And McDarby, or Defendant Merck?

The first two Vioxx cases in New Jersey involving long-term Vioxx use, Cona v. Merck and McDarby v. Merck, may have a jury verdict as early as the first week of April 2006. 

Closing arguments are scheduled to take place in an Atlantic County, NJ courtroom on April 3, 2006, when lawyers for the two plaintiffs and the drug company will talk one last time to the jury about the factual evidence presented during the month-long trial.  Thereafter, Superior Court Judge Carol Higbee will provide the jury instructions that establish the legal standards to be used by the jurors (six women and two men) as they deliberate the issue of whether Merck should be held liable for the heart attacks suffered by Mr. Cona and Mr. McDarby while using Vioxx.

Dr. Margaret Harbison, a psychiatrist who treated plaintiff Thomas Cona for about four years beginning in August 2000, was the final witness put on by Merck’s lawyers. Dr. Harbison’s testimony was intended to counter earlier testimony from Mr. Cona’s daughter that her father was weak and unable to participate in family activities after his June 2003 heart attack. In summary, Dr. Harbison testified that Mr. Cona never mentioned taking Vioxx, neither before nor after his heart attack, and that just three months after his heart attack Mr. Cona said he was "feeling good" and playing golf again.

Under cross-examination by Mr. Cona’s lawyer, however, Dr. Harbison admitted that the doctors who were treating Mr. Cona for his heart attack — which doctors were not called to testify as part of Mercks’ defense case — would likely have better information about Mr. Cona’s Vioxx use, and his physical condition following the heart attack in 2003.

Here is a quick re-cap of this Vioxx trial prior to Dr. Harbison’s being called as the final witness:

• Lawyers for plaintiffs Thomas Cona and John McDarby called 14 witnesses to present their respective cases.
• Merck’s lawyers called only five witnesses: two company scientists; two cardiologists; and, as mentioned above, Mr. Cona’s psychiatrist.
• The essence of the two plaintiffs’ cases was that Merck knew Vioxx caused an increased risk of heart attacks long before it recalled Vioxx, but did not warn doctors and patients because the drug company wrongfully placed profits over safety.
• The theme of Merck’s defense was that the drug company acted responsibly as regards Vioxx, and that it was the men’s pre-existing medical conditions, not Merck’s Vioxx, that were to blame for their heart attacks.

A March 30, 2006 article by Reuters succinctly captured the positions of both sides as these two Vioxx cases go to the jury in New Jersey next week:

" ‘I think the evidence has showed that Merck acted responsibly in testing the medication before it was approved for market and continued to test the medicine after approval and that all the information was shared with the FDA,’ Merck spokesman Chuck Harrell said outside the courtroom."

"Asked for a comment as the trial drew to a close, [Mr. Cona’s lawyer, Mark Lanier] said, ‘I’d rather be sitting in my chair than Merck’s.’ "

Vioxx was pulled off the market in September 2004.  To date, more than 9,650 lawsuits concerning Vioxx have been filed against Merck in the U.S.  The consensus seems to be that the two verdicts in this first New Jersey trial involving long-term Vioxx use will have a significant impact on the Vioxx litigation overall, going forward.

(Posted by: Tom Lamb)