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Judge Decides the Plaintiff Needs to Win Some Cases

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As the Wall St. Journal (subscription required) reports, the Honorable Carol Higbee, the New Jersey judge overseeing 3,500 Vioxx cases in Merck's home state, told lawyers in a private conference on Monday that she wants the next 10 or so trials in her courtroom to involve plaintiffs who took the drug for 18 months or longer.

Does this mean the learned Judge is prepared to grant summary judgment to Merck on the thousands of cases involving folks who took Vioxx for less than 18 months? Apparently not -- rather, it looks like the Judge is trying to create a kind of pro-plaintiff momentum. What shameful behavior, if this is indeed what is going on.

Note that, for those who took Vioxx for more than 18 months, there is still a severe cause-in-fact problem. Just because the long term use of Vioxx increased the risk of heart attack by, say, 10%, does not establish to a probability that every (or any given) long term user's heart attack was in fact caused by Vioxx. To the contrary, depending on each plaintiff's risk factors, it could easily be the case that other causes were likely the culprit. Will a jury, or will the learned Higbee, understand this and so instruct/decide? Or will the judge and jury reason that Merck has the impossible task of "proving" that its drug did NOT cause a given heart attack?

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Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.