February 18, 2006

Andy Birchfield, the plaintiffs' attorney, is discussing an appeal with his clients. (Bloomberg, Feb. 17). "Plaintiffs' attorneys in this case had shifted strategies for this trial, dropping the long scientific explanations that failed them in Houston and instead arguing that Merck scientists and executives ignored early warning signs that Vioxx was unsafe as they heavily marketed it to an unsuspecting public." (Heather Won Tesorio, "Merck Wins Vioxx Decision In Vital Second Court Victory", Wall Street Journal, Feb. 18). "The jury was out for 3 hours and 40 minutes, the shortest deliberation of any of the four Vioxx-related cases." (Janet McConnaughey, AP/Houston Chronicle, Feb. 18.) While the case was another short-term usage case, with the real test of long-term usage cases remaining, it was the first trial where the plaintiffs made use of a hit-piece editorial in the New England Journal of Medicine, as well as the first federal trial under Judge Fallon, who has a docket of several thousand cases consolidated for pretrial procedure. (The parties have apparently agreed to try some test cases in front of Fallon, rather than ask him to remand to the original federal district court where they were filed or removed to.)