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First Federal Vioxx Trial Set to Begin


Another one of those Vioxx trials that Jim Zarroli mentioned starts tomorrow. It's the third such case for Merck. The first one ended with a verdict for the plaintiff in August. Merck won the second case earlier this month. This third trial takes place in a federal court in Houston. NPR's Snigdha Prakash has a look ahead.


When a company faces thousands of lawsuits about an allegedly defective product, one overriding question hovers over the early trials: Will the litigation grow or will it fade away? The early trials provide the first real-world tests of the relative strengths of the two sides, and Howard Erickson of the Seton Hall Law School says that's what makes this latest Vioxx trial so important.

Ms. HOWARD ERICKSON (Seton Hall Law School): The biggest mass torts--asbestos, Dalkon shield, breast implants, fen-phen--have involved hundreds of thousands, even millions of claimants. And the Vioxx cases, at this point, number in the thousands, which is large, but depending on how these early cases play out, it's plausible that the litigation is going to become quite a lot larger.

PRAKASH: Erickson says a loss for Merck would embolden other plaintiffs to file suit. By the same token, he says, if Merck wins this case and keeps winning, plaintiffs with relatively weak cases will likely drop out and new plaintiffs will be discouraged from filing suit.

A second big question hangs over the early stages of a mass tort: Will the sheer volume of cases and early wins for the plaintiffs persuade the defendant to settle the cases? Merck said it won't settle. General counsel Kenneth Frazier reiterated the company's position after its win earlier this month.

(Soundbite of news conference)

Mr. KENNETH FRAZIER (General Counsel, Merck): Our strategy, we believe, is still the right one, first of all, because the company did the right thing and argue every step of the way as it relates to Vioxx we were guided by sound science in the best interest of patients and also because we have the resources and resolve to continue addressing these cases one by one over whatever period of years it may take, and we intend to do just that.

PRAKASH: But many outside legal experts say that if a clear trend does develop against Merck, the company will settle. That's another reason why this trial is important to both sides. US District Court Judge Eldon Fallon would be an important player in those settlement talks. This is the first of four trials he has scheduled over the next few months. Howard Erickson says that's part of the judge's strategy to bring about a mass settlement.

Mr. ERICKSON: It's counterintuitive, but the way judges get parties to settle is by forcing the parties to go to trial because it's both the pressure of impending trial and the information gathered through a series of trial verdicts that enables the parties to settle mass litigation.

PRAKASH: The latest case was brought by the widow of a man who died of a heart attack in May 2001 after taking Vioxx for about a month. Evelyn Irvin Plunkett alleges that Vioxx caused the heart attack. Merck is expected to argue that there is no scientific evidence to support that claim. The plaintiffs contend that isn't true and that Merck knew about the risks of Vioxx long before it pulled the drug from the market last year. Neither side would speak to NPR. The trial is expected to be speedy. The judge has said he wants to wrap it up in two weeks. Snigdha Prakash, NPR News, Washington. Transcript provided by NPR, Copyright NPR.

Snigdha Prakash
Pieces by National Desk reporter Snigdha Prakash can be heard on NPR's All Things Considered and Morning Edition. The majority of Snigdha's past reports have focused on topics related to entrepreneurship, business, banking and the economy.