Over Merck Objections, N.J. Judge Combines Vioxx Cases for Trials

The judge presiding over 3,500 Vioxx cases in New Jersey has set Feb. 27 as the next trial date, this time for a consolidated trial of two plaintiffs' claims, despite drug maker Merck & Co.'s urging that each case be decided on its own facts. One plaintiff, John McDarby, 76, of Park Ridge, took Vioxx for arthritis pain from March 2000 until his heart attack in April 2004. The other, Thomas Cona, 59, of Cherry Hill, took Vioxx from August 2001 until his heart attack in June 2003. Superior Court Judge Carol Higbee in Atlantic County also scheduled three cases for trial on April 24 and two for June 12. Higbee grouped the cases based on the alleged damage as well as the specific years and length of time the plaintiffs took the prescription painkiller. The seven plaintiffs, including McDarby and Cona, are N.J. residents who took Vioxx for more than 18 months and then suffered a heart attack. One died. Merck attorney Ted Mayer of New York's Hughes Hubbard & Reed says his legal team will soon ask Higbee to reconsider her decision to combine cases. "These cases should be tried on their individual facts," says Mayer. "Each plaintiff presents unique medical histories and issues. We'll look at each of the cases that the judge has combined." Plaintiffs' lawyers, who favor consolidation so that more of the cases can be heard sooner, say the groupings would avoid duplication of evidence. Higbee's decision to focus on plaintiffs with longer-term exposure came after a defense verdict in the state's first Vioxx trial last month. That plaintiff, Frederick Humeston of Idaho, took Vioxx intermittently for two months before suffering a nonfatal heart attack. Merck, of Whitehouse Station, N.J., pulled Vioxx off the market in September 2004 after a study showed an elevated risk of heart attack and stroke for patients who took the drug for more than 18 months. The April grouping includes the death case, in which David Jacoby of Anapol Schwartz in Cherry Hill represents a widow. Christopher Seeger, of Seeger Weiss in Newark, the attorney for Humeston, will represent a New Jersey police officer; Rob Dassow of Hovde Dassow & Deets in Indianapolis and Michael Ferrara of Cherry Hill will represent the third plaintiff. Those cases were consolidated because the patients used Vioxx for 18 to 30 months. In the trial set for February, Cona is represented by Mark Lanier of Houston, who won a $253.4 million verdict in Texas against Merck in August in the nation's first Vioxx trial. McDarby' lawyers are Perry Weitz and Jerry Kristal of Cherry Hill's Weitz & Luxenberg. Another Vioxx trial began Tuesday in federal court in Houston.