The court has reduced the number of plaintiffs from four (Jan. 12) to two, though that doesn't change the fact that they have different individualized circumstances that mean consolidating their cases is utterly inappropriate. Even more confusing for the jury, the two are from different states, and will have different legal standards for liability and punitive damages.
One is Frederick Humeston of Idaho, who we've seen before (Aug. 17 and links therein), most notably for having a heart attack immediately after being notified by his employer that a private investigator had videotaped him faking a disability, and then blaming it on his intermittent Vioxx use over two months. The NEJM editorial that caused Judge Higbee to throw out his case hasn't appeared to influence any other juries, so this appears to be purely a second bite at the apple with a different jury—though, if Higbee bifurcates the trial as planned, Humeston could be helped. Humeston will also benefit from learning which acting techniques served his experts poorly in the last trial (Nov. 4, 2005). Diane Sullivan, who clashed with Judge Higbee in the previous Humeston trial, will reprise her role as lead counsel.
Merck comments on the second plaintiff, the sister of the late Brian M. Hermans:
In one case, Kathleen Hermans Messerschmidt alleges that her brother, Brian Hermans of Waupaca, Wisconsin, suffered a fatal heart attack at or around September 15, 2002 after allegedly taking VIOXX for approximately 19 months. An autopsy showed that Mr. Hermans, who was 44 years old at the time of his death, had an enlarged heart and multi-vessel coronary artery disease. The evidence also will show that Mr. Hermans had a strong family history of heart disease and early death. In addition, the evidence will show he had untreated high cholesterol and high blood pressure. Further, records show that Mr. Hermans died from an arrhythmia and had methadone and fluoxetine in his system at the time of death.
Opening arguments are scheduled for January 22.