Upcoming drug trial toughest yet for Merck

ATLANTIC CITY -- After two victories in a row, Merck & Co. faces its toughest courtroom test yet in the legal wars over Vioxx next week, squaring off against the only lawyer to beat the drug maker in such a case and two long-term Vioxx users who appear to have science on their side.

The outcome of the trial, specialists say, could chart the course for thousands of future Vioxx cases.

Another Merck victory could have a chilling effect on some of the approximately 9,650 Vioxx cases pending against the maker of the blockbuster arthritis drug that was taken off the market in 2004 after a study linked it to increased risk of heart attacks and strokes.

A Merck loss, on the other hand, could cause the Whitehouse Station, N.J.-based firm to rethink its plan to try the cases one by one rather than offer settlements.

In this trial, which opens Monday, time is not on Merck's side: It's the first one involving plaintiffs alleged to have taken Vioxx for years.

In it, Thomas Cona, 59, of Cherry Hill, and John McDarby, 77, of Park Ridge, contend Vioxx caused their heart attacks. Both say they took it for more than 18 months before being stricken.

That's a key point, since it was Merck's own clinical study that showed patients who used Vioxx for 18 months or more faced double the risk of heart attack or stroke. In the first four Vioxx cases, the plaintiffs were all short-term users -- having taken it for no longer than eight months.

About 9,650 suits against Merck are pending in state and federal courts, 5,093 of them in New Jersey.

''If we win, I think Merck's got to give some thought to giving a fair settlement [to Vioxx plaintiffs]," said Cona's lawyer, Mark Lanier. ''If we lose, Merck's going to be emboldened to continue trying cases and not settling."

Lanier, 45, is Merck's legal nemesis.

The Texas attorney, who won a $253 million award last summer for the widow of a Wal-Mart produce manager who died of a heart attack while taking Vioxx, combines aggressive behind-the-scenes litigating with a folksy courtroom demeanor and a thick Southern drawl.

To date, Merck has won two Vioxx cases and lost one. A trial is ongoing in Rio Grande City, Texas.

In those cases, the duration of the plaintiffs' use of Vioxx ranged from a week to eight months, and Merck argued in each that there was no evidence to show Vioxx was dangerous when taken for that long.

That strategy won't be available this time, since Cona and McDarby -- according to their lawyers -- both took it for much longer.

Chuck Harrell, a spokesman for Merck, reiterated Merck's determination to take the Vioxx trials one at a time and said each one carries different sets of facts.

''The plaintiffs are going to have to show that this drug caused these events," he said. ''Each had multiple preexisting risks for heart attack. It's going to be a steep hill for the plaintiffs to climb."