Merck: Two Vioxx cases shouldn't be consolidated into one trial

Merck & Co. has filed a motion opposing a judge's plan to consolidate two Vioxx cases into one trial, saying their differing circumstances would make for a "Frankenstein's monster" of a case for jurors to consider. State Superior Court Judge Carol Higbee has consolidated the cases of Thomas Cona and John McDarby for the Feb. 27 trial, but Merck _ which pulled the popular arthritis drug off the market in 2004 _ said in a motion filed Friday that the facts, evidence and witnesses presented to make each man's case would confuse the jury and hurt Merck's chances for a favorable verdict.
Cona, a 59-year-old businessman from Cherry Hill, said he took Vioxx for more than two years before suffering a heart attack in June 2003. McDarby, 76, of Park Ridge, said he took the drug for two years before being stricken. "(F)aced with a Frankenstein's monster of a trial involving a jumble of evidence," Merck attorney Hope Freiwald wrote as part of her in the 26-page motion, "... jurors would inevitably be unable to divide their brains in half and restrict their consideration of evidence to the case for which it is admissible while ignoring that same evidence in the other case where it is not." Disparities between Cona and McDarby's cases will make it tricky for jurors to consider both claims at once, according to Freiwald's 26-page motion. For example, Merck's understanding of the risks posed by Vioxx was different when the drug was prescribed for McDarby than it was 17 months later when Cona had it prescribed, and evidence presented on Cona's behalf could taint the jury about McDarby's claim, according to Merck's motion. "A jury that is confused and uncertain, as any jury facing a consolidation of these two cases would necessarily be, will most likely resolve that confusion in favor of the sympathetic plaintiffs and against the big pharmaceutical company," the motion said. McDarby's lawyer accused Merck of wanting to sever the cases so that the Vioxx litigation drags out. "Merck doesn't want to consolidate cases because they want to stall the litigation and trickle cases out of the system and starve out the plaintiffs so they take less money," said Perry Weitz. "Fortunately, I think our judiciary is too savvy and won't fall for that." He said trying two cases at once would not prejudice jurors. No date has been set for a hearing on Merck's motion. Merck & Co., which is based in Whitehouse Station, pulled Vioxx from the market in September 2004 after research showed it doubled the risk of heart attacks and strokes after 18 months' use. In the first New Jersey trial, a jury dismissed a claim that Vioxx caused the heart attack of an Idaho postal worker who had been taking the drug for about two months. The company faces about 9,650 lawsuits filed by former Vioxx users. So far, Merck has won one, lost one and had one mistrial declared.