Superior Court Judge Carol Higbee has set February 27, 2006 as the date for the consolidated trial to start in lawsuits filed by Thomas Cona and John McDarby. They both took Vioxx for more than two years before each suffered heart attacks.

Merck did not want a consolidated trial and had argued in favor of independent trials. The company had also argued agaist Judge Higbee's order to try some of those cases first in which the victim had taken the drug for more than 18 months.

And to make matters worse for the drugmaker, Cona's family is being represented by Mark Lanier, the same Vioxx lawyer who scored the first win against Merck in the lawsuit filed by Carol Ernst.

After news that as many as 2,000 Britons died after taking the painkiller Vioxx, several solicitors in the country tried to file lawsuits on their behalf in the UK. But according to a recent decision, these victims will no longer be able to mount compensation claims in British courts. The insurance needed to pursue a claim on a no-win, no-fee basis has also been denied to these victims.

While they may still be able to pursue their cases in American courts, there will be many more challenges ahead for these victims.

In the meantime, Merck continues to face challenges of its own and has recently announced another round of layoffs to counter the setbacks from Vioxx litigation.

It is pretty obvious that Merck's legal troubles are driving it towards a path of financial ruin or even eventual bankruptcy. After the stock has been in a steep fall since the recall of Vioxx was announced, the company has struggled to find solid ground to stand on. In desperate measures since then, the company has responded by laying off the hapless employees of the company.

Not knowing what to do as it starts the federal trial, Merck has announced that it cutting an additional 7,000 jobs. In other words, one out of ten Merck employees is being let go. The company has also announced plans to close or sell five of its manufacturing plants as part of an up to $4 billion restructuring plan.

In the meantime analysts believe that when Judge Eldon Fallon allowed plaintiffs to present evidence that even rare or short-term use of Vioxx can be fatal, Merck will now have to fight each lawsuit or settle with them. In other words, the compay will be mired under Vioxx litigation for at least a decade.

Related article: Major setback to Merck in Vioxx trial

After Merck strongly protested against trying only those cases in New Jersey in which the victims had taken the drug for more than 18 months, the company suffered a setback when Judge Carol Higbee overruled them. Now, in another major setback to the company, Judge Eldon Fallon has decided that the plaintiff can argue that even short-term, rare or intermittent use of the drug can be lethal. The federal Vioxx trial is scheduled to begin after Thanksgiving.

One the major points of debate in Vioxx litigation is if use of the drug for less than 18 months is as lethal as many plaintiffs argue. It was on this very point that Frederick Mike Humeston lost his case in the second trial in Atlantic City. In the federal trial, though, the Judge Fallon has said directed the attorney can argue that Vioxx can cause a heart attack even if used for less than 18 months. However, to make the playing field level, he has also allowed the company to argue otherwise.

"In essence, both the Plaintiff and Merck rely on the same material," U.S. District Judge Eldon Fallon wrote in his ruling. "They simply interpret it differently and reach contrary conclusions. The Court's role as gate-keeper is to scrutinize the methodology, not the conclusions."

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Many legal experts and scientists are of the opinion that Merck used somewhat weak argument to convince the jury in Atlantic City that Vioxx does not cause heart attack if taken for less than 18 months. Experts had argued that even rare or occasional use of the arthritis drug was enough to trigger a heart attack and lead to death. As many as 60,000 Americans have died due to personal injuries from the blockbuster drug Vioxx. However, Mike Humeston, the plaintiff in the Atlantic City trial lost his case, because of Merck's argument that many now find not convincing enough and likely to be strongly challenged through evidence.

In response, Judge Carol Higbee had suggested that the next few cases to go on trial should be of those victims who took the drug for more than 18 months. Merck's own research had shown that Vioxx was deadly after that period and the company announced a recall last year. However, the company strongly opposed Higbee's proposal since it is expected to lose all of these cases.

In a major setback to the company, Superior Court Judge Carol Higbee has decided that the next 7 cases to go on trial will include only New Jersey victims who suffered heart attacks after taking the drug for 18 months or more. The trial will begin January 30 of next year.

Vioxx attorneys will try to argue in forthcoming trials that the 18 month timeframe is simply an excuse that the company is using to run away from its liability. This issue will also be challenged later this month in the federal trial in Houston. There is a huge body of evidence that shows that the drug need not be taken for that long to see its serious side effects.

Recommended link: Merck let Vioxx users die

We had reported earlier that Judge Carol Higbee had proposed that some of the next Vioxx lawsuits to go on trial should be those that involved long term users has met with strong opposition from Merck. Apparently the company thinks that if it has to face only those cases that it is bound to lose, it will not be good for the company.

The company was delighted with the outcome of the Mike Humeston case in which it one because he had taken the drug for just two months. Having several outcomes of this type will not only help the company argue that it has a strong chance in Vioxx litigation, it may also allow it to negotiate better terms with victims when it eventually settles the lawsuits.

Related article: Should you settle your Vioxx lawsuit?

One of the major reasons cited for the Merck's victory in the second Vioxx lawsuit trial was that Frederick "Mike" Humeston took the drug for just two months. While many experts believe that even occasional or rare use of Vioxx is enough to trigger a heart attack, at least in the Atlantic City trial, the jury was not convinced.

Now the WSJ is reporting that Judge Carol Higbee, who will preside over 3,500 Vioxx product liability lawsuits, is suggesting that at least next ten or so trials in her court should only be of those victims who have taken the drug for at least 18 months. Studies by Merck have shown that the chances of a heart attack are much higher after 18 months of continuous Vioxx use.

Merck is getting ready to face the first federal Vioxx trial later this month.

Related article: Merck buried in Vioxx litigation

More legal trouble ahead for Merck in Vioxx litigation

The victory for Merck in the lawsuit brought by Mike Humeston may have given a temporary relief but more trouble lies ahead for the company. Humeston had taken Vioxx only for a short period of time and he could not prove that he was taking the drug at the time of his heart attack. Plus, he survived the attack as well. In that sense, his case was a weak one. But as many as 60,000 Americans have actually died after taking Vioxx and overall 140,000 personal injuries are attributed to the painkiller by the FDA.

Legal experts believe that while Merck's victory may mean that those victims that took the drug only for a short period of time and did not suffer any serious injury are unlikely to win their lawsuits, nothing else has changed. The trial in Atlantic City did bring out many other aspects of Merck's unethical behavior in marketing of Vioxx.

The next trial begins later this month in the lawsuit filed by Evelyn Irvin Plunkett who is suing the company for the death of her husband, Richard Irvin Jr., a man in his early 50s who had a sudden heart attack just one month after taking Vioxx. In that sense her case is similar to that of Carol Ernst who won a quarter billion award against the company. In any case, Merck is already overwhelmed with other thousands of lawsuits.