Gary Smith of Florence, Kentucky, who claimed that he did not know the dangers of Vioxx lost his case against Merck in which he held the company accountable for his heart attack. The company was successfully able to show a jury of six men and two women that his other health factors like high blood pressure and coronary artery disease (plus, intense physical labor on the day of the heart attack) were the main reasons.

While there is no doubt that Vioxx does cause heart attacks and strokes, it is not easy to make that case for each individual if there can be other contributing factors like obesity or diabetes or high blood pressure. It does make it difficult for thousands of Vioxx victims to demand compensation from the company that was forced to recall the drug after tens of thousands of deaths worldwide.

With this victory, Merck has won five lawsuits while it has lost four. As the statute of limitations ends, Merck is likely to face close to 20,000 lawsuits in the coming months unless there is a settlement before that.

Merck is back to fighting its war with three more Vioxx victims: Gary Smith, a 56-year old from Florence in Kentucky and two other victims from California, Rudolph Arrigale and Lawrence Appell, who are scheduled to start their consolidated trial (a setback to the company which is strongly opposed to consolidating cases) within weeks.

As has Merck done in every single time in the past, it is accusing the victims for their heart attacks, but looks as if science is going to help them. In two studies being published, Vioxx has been found to be the most dangerous Cox-2 drug. Apart from causing cardiovascular problems in patients, these studies find that Vioxx also causes kidney and heart arrhythmia problems and it does it pretty quickly.

It has also been found in another study that if Merck had done some data analysis earlier, the dangers of Vioxx would have been known earlier and thousands of lives saved.

Several Vioxx cases retrials likely

The news that the Gerald Barnett case will have a retrial, has not been greeted with disappointment by the plaintiff attorney. On the other hand, Mark P. Robinson, Jr., lead plaintiff lawyer in the case says that the federal judge's ruling on compensatory damages, in fact, supports the jury's finding of liability and is a "positive development" for his client and others suing Merck.

"This is a significantly positive decision for all of those whose lives have been damaged or destroyed by Vioxx," said Robinson. "The judge ruled that the jury's findings -- that Merck negligently failed to warn and committed deceit-by-concealment with Vioxx -- were reasonable findings. Though the court ruled that the compensatory damages were excessive, the judge also said he was not troubled by the punitive damages award. Further, he is going to allow one jury to try both the compensatory and the punitive damages award again in a single trial. All of this taken together is a very positive development for those who are victims of Vioxx."

Will the Leonel Garza case retried too?

Merck's attempts to delay any payment of compensation to victims got another boost when it came to light that a juror, Jose Manuel Rios, may have had a financial relationship with the widow Felicia Garza. While in the small Texas community, this is very common, Merck wants to use this as a basis for retrial.