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Plunkett v. Merck begins

And Judge Eldon Fallon has suggested that the case will last only two to three weeks in his courtroom, rather than the seven-week trials we've seen so far. The nine-person jury (six members, three alternates) was selected in under two hours. An early AP report yesterday uncritically repeats plaintiff's claim that Dicky Irvin was in "very good health", even though, as Point of Law readers know, that's not true.

Unlike the Ernst trial, we won't see opening statements accusing Merck of being a cash machine; Fallon announced he wouldn't allow prejudicial attacks like that. Nevertheless, plaintiff's attorney Andy Birchfield suggests some interesting "science": "It didn't matter what the dose was. It doesn't matter how long you took it," he told the jury, thus propounding the fascinating theory that Vioxx is a miracle drug that has the same effect if one takes one pill or 550. (And, of course, if Birchfield's theory is true, there's no reason to take Vioxx off the market, because all those who have already taken a single Vioxx pill are just as "doomed" as those who are taking it continuously.) Birchfield used part of his hour-long opening statement to talk about Dodgeball Vioxx, which we discussed Nov. 10.

(Anne Belli, "Expert testifies Vioxx can cause deadly clots", Houston Chronicle, Nov. 29; Matt Daily, "Widow's lawyer says Vioxx killed Florida man", Reuters, Nov. 29; AP/Forbes, Nov. 29; Peter Geier, "Vioxx Litigation Goes Federal", National Law Journal, Nov. 29; "Merck Is Likely to Win First Federal Vioxx Suit, Lawyers Say", Bloomberg, Nov. 29; George E. Jordan, "Vioxx cases face tougher litmus test", Star-Ledger, Nov. 27; Heather Won Tesoriero, "Judge's Ruling Tempers Merck's Hopes for Trial No. 3", Wall Street Journal, Nov. 25 ($)). We covered the Daubert rulings in the Plunkett case on Nov. 23; as Evan Schaeffer points out, the National Law Journal inaccurately reports as if these motions had not been decided yet, though the plaintiffs still need to worry how the Fifth Circuit will handle an appeal.

The sloppiness of the plaintiffs' experts can be seen in AP report on the lead-off witness, Dr. Benedict Lucchesi (Sep. 20):

"I think it is highly likely that Vioxx contributed to Mr. Irvin's heart attack," said Lucchesi, who testified at the two other Vioxx trials.

But under cross examination, Lucchesi conceded that he never looked at the slides of Irvin's blocked artery and acknowledged [there] is debate is the scientific community whether an imbalance of prostacyclin and thromboxane leads to heart attacks.

Lucchesi also said his convictions about what caused Irvin's death differed from two other plaintiff experts - a pathologist who believes, as does Merck, that ruptured plaque triggered the heart attack, and another pathologist who was noncommittal.

Relatedly, the AP backgrounder on MDL litigation explains another reason why Mark Lanier is trying to avoid federal court—he doesn't want to share money with the plaintiffs' attorney steering committee. Lanier also has a great quote that effectively admits the lottery nature of the status quo: "In mass torts, it's like batting in baseball. The plaintiffs are great if they bat .333 (win 1 of 3)." (Brenda Sapino Jeffreys, "Hundreds of Cases Hang in Balance as First Federal Vioxx Trial Begins", Texas Lawyer, Nov. 29).



Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.