In another editorial under the heading "Expression of Concern Reaffirmed," three editors of the New England Journal of Medicine, Gregory D. Curfman, M.D., Stephen Morrissey, Ph.D., and Jeffrey M. Drazen, M.D. are taking on Merck that has the reputation of destroying the career of anyone who has ever questioned the safety of Vioxx - a drug that has killed as many as 60,000 Americans, according to the FDA.

In another setback to the company, Superior Court Judge Carol Higbee denied on Merck & Co.'s request to separate the two cases, those of John McDarby of Park Ridge and Thomas Cona of Cherry Hill, whose trial begins next week.

While Merck has been fighting almost 10,000 personal injury lawsuits, it has never admitted that Vioxx caused so many deaths in America alone. The editors write, "..conclusions regarding the safety of rofecoxib were misleading." In fact the manner in which Merck explained the fatal risks of Vioxx (Aleve was better; not that Vioxx was worse) has shocked the community of scientists who like to follow the highest standards of ethics.

The editors conclude by saying that they are not yet convinced that Vioxx was a safe drug and Merck's published research "did not accurately reflect the potential for serious cardiovascular toxicity with rofecoxib (technical name for the drug)." This has clearly been a big setback to the company after it was celebrating its victory in the first federal retrial. The juries in the forthcoming trials are bound to hear this argument so that they can make up their minds about the injuries caused by the drug.

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In a major setback to those Vioxx victims who took the painkiller only for a short period of time or rarely, a jury in New Orleans has ruled that the company was not responsible for the death of Richard Irvin in the Plunkett versus Merck case retrial (the case ended in a mistrial earlier in Houston). According to FDA estimates by Dr. David Graham, approximately 60,000 Americans have died from Vioxx.

In a statement, the company's lawyer Philip Beck says, "The jury's decision confirms that there is no medical or scientific evidence showing short-term use of VIOXX increases the risk of heart attack and contributed in any way to the unfortunate death of Richard Irvin." This has been the position of the company all along but the scientific community does not buy this argument yet. Most outside scientists agree that even short-term or rare use of the drug is enough to trigger a fatal heart attack.

This is only the third case in Vioxx litigation. Merck is facing as many as 10,000 cases (latest approximation). The company has refused to settle any cases yet and its second win in a row has emboldened it to say that it will continue to fight each case individually.

"Like all VIOXX cases, this one was about individual causation and that's why we are dealing with these cases one by one as they come to trial," said Kenneth Frazier. "The fact remains that heart attacks are a major cause of death in the United States and have multiple causes. It will be difficult for plaintiffs to prove that VIOXX was the cause of any individual's heart attack."

Related article: Merck fights consolidation of Vioxx cases

One of Merck's legal strategies to discourage Vioxx victims from coming forward is to drag the legal process as much as it can. So it was no surprise that when New Jersey Superior Court Judge Carol Higbee consolidated the cases of Thomas Cona and John McDarby for the February 27 trial, the company decided to fight the decision.

In a motion filed by the company, it is saying that consolidating two cases would confuse the jurors since the two cases are quite different.

Here is the background on the two victims. Thomas Cona is a 59-year-old businessman from Cherry Hill, New Jersey and took the painkiller for more than two years before his severe heart attack in June of 2003. John McDarby, 76, also from New Jersey (Park Ridge), took the drug for two years before being stricken.
This is the first time that two living victims who took the drug for more than 18 months (Merck admits that Vioxx can be a killer if taken for this long) are going to get their day in court.

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Setbacks for Merck in Vioxx ligitation

Developments during last few days in Vioxx litigation have not been very encouraging for Merck. Here is a summary of what is going on since the billion dollar lawsuit trial began in Texas last month and the federal lawsuit retrial started in New Orleans.

Even rare of short term use of Vioxx can be deadly

According to Merck, Vioxx can cause heart attacks and strokes only if taken for at least 18 months. In fact, Frederick "Mike" Humeston lost his case because of this claim by Merck. But no respectable scientist outside Merck buys this argument. In a shocking development, New England Journal of Medicine Executive Editor Gregory Curfman has told the lawyers that he and other journal editors were "very skeptical" of the 18-month figure and tried to get a study author to "back away from this contention" in an article published by Merck researchers (in which they tried to make the painkiller appear less risky by hiding the number of deaths). If the jurors believe this contention of scientists then Merck really has no defense going forward.

Merck has a new team of attorneys

Diane Sullivan and Stephen Raber who both provided a lot of "entertainment" (though, it was highly unprofessional behavior in the legal community) during the trial in New Jersey and openly clashed with Superior Court Judge Carol Higbee are out despite the fact that they help Merck win the case.

Trials delayed

The second and third federal Vioxx trials, originally scheduled for March and April, have been postponed for about two months.

Former Merck CEO Gilmartin agrees to testify

Raymond Gilmartin, who was fired for mishandling the recall of the painkiller, will testify at the trial in Atlantic City in late February.

Eric Topol leaves Cleveland Clinic

Dr. Eric Topol, one of the fiercest and earliest critics of Vioxx, has been pushed out by Cleveland Clinic, which is now working with Pfizer on the Celebrex Precision trial. Many analysts believe that he is among many scientists who have been hurt for fighting against Merck.

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