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.

Vioxx litigation draining Merck

Vioxx is hardly the only reason Merck's stock has tumbled 63 percent from nearly $95 in November 2000.
Earnings have slipped in recent years as competition from generic products has cut into revenues. The company has also struggled to produce a new blockbuster drug the likes of Vioxx or the $4 billion a year cholesterol fighter Zocor.
But as jury selection begins Monday in state Superior Court in Atlantic City in the next Vioxx trial, analysts believe the ongoing litigation will likely serve as a drag on the stock price even as the Whitehouse Station-based drug maker appears to be regaining its footing.
Typical of many analysts' comments are those of John Boris of Bear Stearns, who wrote in a recent note to investors: "We see only limited upside to the stock, since earnings growth is not expected to resume for Merck until 2009 and the litigation news flow on Vioxx in the near term will be a major overhang."
Merck is facing more than 9,600 Vioxx lawsuits.
Nevertheless, CEO Richard Clark said last month that savings have already begun to accrue from a restructuring plan designed to shave $4 billion in expenses through 2010. Moreover, Clark said earnings growth should begin to pick up steam again as early as 2007 as revenue from new products starts rolling in.
Already in 2006, Merck has received approval for RotaTeq, a vaccine for preventing a common but serious gastrointestinal virus in children. And approval is expected later this year for Gardasil, a cervical cancer vaccine, and Januvia, a treatment for Type 2 diabetes.
Investors have responded, raising the stock price about $10 since it closed at a recent low of $25.85 on Oct. 7, about six weeks after a Texas jury awarded the widow of a Vioxx user $253.4 million in damages. The stock closed down 31 cents to $35.10 on Friday.
John P. Wilkins, president of Wilkins Investment Counsel, a Boston-based advisory firm that owns Merck shares, believes investors have been unduly influenced by the Vioxx litigation.
"In my 32 years of experience, I've never seen hysteria as severe as it was regarding the Vioxx recall," he said.
Indeed, the stock plunged $12 -- from $45 to $33 -- on Sept. 30, 2004, the day Merck withdrew Vioxx from the market based on research that showed the popular painkiller doubled the risk of heart attacks and strokes after 18 months of use.
Wilkins noted that Wall Street has reduced Merck's potential liability since the drug was withdrawn.
Moreover, taking into account Merck's restructuring plan -- which includes cutting 7,000 jobs and closing five facilities -- and the company's announced intent to refocus its research and development in areas "where Merck has particular competence," Wilkins believes the stock may represent a bargain at its current price.
"If you agree that it was [Vioxx] hysteria" that drove the stock down in the first place, he noted.
Since losing in Texas last summer, Merck has won the two most recent trials.
A jury in Atlantic City ruled in favor of Merck in November in the case of an Idaho man who had used Vioxx for about two months. And in a retrial of a case that ended late last year in a hung jury, a federal jury in New Orleans cleared Merck on Feb.17 of responsibility in the death of a Florida man who had used Vioxx for less than a month when he suffered a heart attack.
The trial that opens Monday, which combines two cases, poses new challenges for Merck, however.
First, the plaintiffs, John McDarby of Park Ridge and Thomas Cona of Cherry Hill, both say they were long-term Vioxx users. Plaintiffs in the earlier trials were short-term users.
McDarby, 76, said he took Vioxx for more than four years before suffering a heart attack in April 2004. And Cona, 59, said he took Vioxx for two years before his heart attack in June 2003.
"I'm going to show the jury Merck's own study, which shows the longer you use Vioxx the greater the chance of having a heart attack," said Robert Gordon, a product liability trial lawyer with the firm Weitz & Luxenberg, who is representing McDarby.
Second, Merck on Thursday had its request to have the trial separated into two cases denied by Superior Court Judge Carol Higbee, who chose to consolidate the cases.
Merck officials have insisted since the first Vioxx case was filed in May 2002 that the company plans to fight each lawsuit individually because each case is different and must be argued on its own unique set of facts. The company has set aside $685 million to cover legal fees stemming from the suits.
Blending the cases will double the already voluminous amount of information that jurors will need to digest, a fact that will likely cause confusion and tilt the scales against Merck, the company's lawyers have argued.
Higbee dismissed that argument on Friday, saying the McDarby and Cona cases are similar enough to be heard by one jury.
Gordon believes consolidating the trials is the only way all of the Vioxx plaintiffs will get their day in court. The court system isn't equipped to efficiently handle all the cases waiting to be tried, he said.
"It's not possible for the court system to address the problem without consolidating trials," he said. Besides, he added, "There's no reason a jury can't determine causation in more than one case at a time."
Opening statements are expected on March 6.
E-mail: prial@northjersey.com