Peter Lattman reports in the WSJ law blog, via Heather Won Tesoriero, that the plaintiffs' lawyers in the McDarby trial plan to call Ray Gilmartin, former Merck CEO (1994-2005), to the stand for the punitive damages portion of the trial. Gilmartin has thusfar not testified in any Vioxx trial.

The plaintiffs' strategy is to paint Merck under Gilmartin as a rogue company that "put profits before patient safety." To receive punitive damages under New Jersey law, the plaintiffs will have to convince the jury that Merck knowingly misled the FDA about Vioxx's safety profile.

As Tesoriero explains, punitive damages in New Jersey are limited to the greater of $350,000 or five times compensatory damages, so the extra damage for Merck in this case will be cabined. But how Gilmartin performs on the stand could dramatically affect expectations for future trials.