Time Limits Planned for Next Vioxx Trial

The wheels of justice will spin a little faster at the next Vioxx trial. A pair of chess clocks will see to that.
Determined to keep it short, lawyers for Merck & Co. and two men suing the painkiller's manufacturer have agreed to time limits on testimony and will use tabletop clocks _ activated manually, each time one side or the other puts a witness on the stand _ to keep track.
When the trial begins March 6, lawyers for plaintiffs Thomas Cona and John McDarby will have 40 hours to present their cases, not including opening statements and closing arguments. Lawyers for Merck will get 35.
The idea is to accelerate the battles in the massive legal war over Vioxx, an arthritis drug pulled off the market in 2004 after being linked to heart attacks and strokes with long-term use. More than 9,650 suits have been filed in state and federal courts by former Vioxx users or their survivors, who blame the drug and say its Whitehouse Station, N.J.,-based manufacturer should be held accountable.
With Merck vowing to fight them one by one, many involved are looking for ways to speed up the process _ without sacrificing justice.
It's the legal equivalent of a hurry-up offense.
"Lawyers are like gas. We fill up whatever room we're provided," said Robert Gordon, an attorney for McDarby. "Often times, judges need to assert some sort of reasonable control. If Merck is to be taken at their word, they're never going to settle _ and there's 10,000 cases to go. The court system's going to have to be creative in adjudicating the cases."
The idea for the clocks came after state Superior Court Judge Carol Higbee _ who presided over a Vioxx trial that took seven weeks last fall _ asked the lawyers for ideas on how to limit the next one's length. Cona's lawyer, Mark Lanier, a chess enthusiast, suggested the clocks _ and even provided them.
Merck's lawyers argued for equal time, but plaintiff lawyers persuaded Higbee to give them five hours more, since they have to lay the medical and factual foundation from which both sides will build.
It's common for judges to keep tabs on how much time lawyers are taking in a trial, but one veteran product liability lawyer said he'd never heard of a court imposing time limits _ or using chess clocks to enforce them.
"In my 36 years experience, I've never been under any kind of clock, chess or otherwise," said Alan Klein, of Philadelphia. "Judges move cases along, that's their function. But I've never heard of having to punch a clock."
If either side asks for more time because of issues that arise during in the trial and Higbee says no, it could be grounds for appeal, he said.
Vioxx, a pain reliever marketed to arthritis sufferers, hit the market in 2000 and was a $2.5 billion-a-year blockbuster for Merck, quickly becoming a godsend for thousands of people with chronic pain who suffered gastrointestinal side effects while taking other types of pain relievers.
Merck has dug in its heels for the courtroom wrangling over it, setting aside $970 million to defend itself against personal injury suits but no money for settlements.
To date, Merck has won twice and lost once in Vioxx trials. But some see the impending Cona/McDarby case as a bellwether for what lies ahead, since it's the first involving a patient who used the drug long term.
Cona, 59, of Cherry Hill, said he took the painkiller for more than two years before suffering a heart attack in June 2003. McDarby, 76, of Park Ridge, a retired insurance salesman, took Vioxx for four years without incident until he suffered a heart attack in April 2004.
Chuck Harrell, a spokesman for Merck's legal team in the case, said the company treats each case individually.
"Every case is different. We're going to try each case, one at a time. Each one has different facts," he said. Asked if Merck was optimistic because of its victory last week in a federal Vioxx trial, he said: "We have optimism in every case that we try."
Lanier, a colorful Texas attorney who won a $253 million judgment against Merck last summer in the first Vioxx case to go to trial, is already an issue in this one.
In a Feb. 6 motion, Merck's lawyers asked Higbee to keep a tight rein on Lanier, accusing him of casting aspersions on Merck's attorneys, promoting himself and misrepresenting testimony to jurors in the Texas trial. Merck's lawyers cited 14 instances in which they contend Lanier overstepped his bounds in that case.
"I don't mince words. I speak bluntly, and I'll continue to do that," Lanier said in an interview. "Remember, this is coming from a company that, in the last (New Jersey) trial, engaged in a shouting match with the judge. I promise I won't do any of that. We just need to be nice and polite _ to the court, to the jury, to each other."
Lanier may call former Merck Chairman and CEO Raymond Gilmartin as a witness. Gilmartin, who retired last year, was head of the company when Vioxx was voluntarily pulled off the market by Merck. But he has yet to testify in person in any of the trials.
Jury selection for the trial begins Monday.