Merck, expecting defeat, prepares for appeal?

Has Merck already conceded defeat in the ongoing Vioxx trial in Atlantic City and preparing for the next trial in the appeals court? That is a theory rapdily developing after the behavior of Merck's legal team during the course of the trial, but particularly, during last week.

It is very clear that right now Merck attorney Diane Sullivan is more interested in getting things on record rather than actually defending Merck. The shouting match that she had with Judge Carol Higbee was clearly designed to build a stronger case when the company appeals the decision (if it loses - though experts believe that all indications point to Frederick "Mike" Humeston winning the case).

The company has been dealt several severe blows throughout the trial resulting in total demolition of its legal strategy. With Briggs Morrison's testimony completely thrown out, the company does not have a whole lot of ammunition left to defend itself. And Merck's general counsel Ken Frazier might very well be referring to the future trial in the appeals court when he said that "(Judge Higbee's decision) effectively denies Merck its fundamental right to a fair trial." The company said something similar when they responded to their defeat in the Carol Ernst versus Merck case.

A defeat in this trial will not only be disastrous to Dechert LLP but also to Merck that might be forced to bring back its now withdrawn offer of settlement.

Related article: Merck's desperation obvious in its legal tactics