Saturday, February 18, 2006

More on Writs

[vioxx; not a new avatar]

Jury Rejects Claim That Vioxx Caused Death
Merck Has Now Won 2 of 3 Cases

By Brooke A. Masters
Washington Post Staff Writer
Saturday, February 18, 2006; Page A17

A federal jury in New Orleans yesterday cleared drugmaker Merck & Co. of responsibility in the first federal case involving use of its withdrawn arthritis drug Vioxx.

The eight-member jury deliberated for less than four hours before finding that Merck was not liable for the 2001 heart attack that killed Richard Irvin Jr., who had taken the painkiller for less than a month. The jury agreed that Merck was not negligent, did not provide inadequate warnings about the drugs and did not produce a defective product


BrooklynDodger(s) comments: The Dodger(s) is a little concerned about this decision if the jury in fact found that "Merck was not negligent, did not provide inadequate warnings about the drugs and did not produce a defective product." The Dodger(s) general reading is that Merck at the very least pushed for marketing Vioxx beyond those who suffered stomach aches from the cheaper, longer tested alternatives. The NEJM suggests that the original clinical trial report might have been cooked as well. Nevertheless, a plaintiff still has to show that the injury they suffered was caused by Vioxx Looking at the 3 trials so far, the Dodger(s) hope that the plaintiff's bar is testing how weak a case on causality will win. This case had previously hung at 8-1 for no cause.

There is a precedential danger here. WaPo tells us:

The New Orleans case has been closely watched because it was the first of 4,050 federal Vioxx cases to come to trial. U.S. District Judge Eldon E. Fallon, who is overseeing all of the federal cases, has scheduled two more trials in the next few months and has said he hopes to conduct broad settlement talks when all three are finished. [This would seem to be a reason not to go back at the same venue with the same case in front of that particular judge.]

Merck also is defending more than 5,500 state court cases, including one now being tried in Texas.

The victim took Vioxx for one month. It was prescribed over the phone by a son-in-law, several states away. The son in law testified that a warning would have kept him from prescribing.

The judge excluded two plaintiff's witnesses. From the Times article, these appeared to be physicians who had treated the victim. The judge said they were not qualified to opine on whether Vioxx caused the heart attack. The Dodger(s) is conflicted about that. Excluding witnesses is bad news. Probably they were qualified to say they were really surprised the patient kicked the bucket, given their experience with similarly healthy patients. But are they any better biostatistically compared to the cheerleader manufacturer's reps giving away drugs?

These trials are deciding issues which are as complex as the risk assessment phase of a full blown OSHA chemical hazard rulemaking. The jurors are at least as qualified as the lawyer now nominated as Assistant Secretary of Labor for OSHA, or the Secretary of Labor, neither of whom have any science training. But the issues may not be framed, or the plaintiff's experts as credentialed to opine on the issues which are key.

It would be good if the plaintiff's lawyers could control what's going in front of this judge? He's listening to it all, Merck gets to fine tune.

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