Well, sort of. By now most are digesting the impact of the verdicts yesterday in New Jersey. The McDarby case verdict exceeded $4 million, while the Cona case essentially was a zero (a jury award of $45, trebled to $135).
As they say in the South, the verdicts makes the claims against Merck "clear as mud."
A few thoughts:
* Merck now knows that there are two firms that can beat the Company in trial.
* Will Mark Lanier's fiery Texas style litigation work in New Jersey? It didn't work on the Cona case. He has an office now in New York, so he is in for the long haul.
* Did the N.Y. Firm of Weitz & Luxenburg have an East Coast style that plays better?
* Causation: Lanier took the approach that the marketing of the drug was the key part of fault here. That worked in his Texas verdict, but here the question was one of causation, as it should be.
The punitive damages phase on the McDarby case starts this morning, and as a result the damages could top $20 million.
Mr. McDarby is quite ill from all reports. He had a heart attack on April 15, 2004, at home in Park Ridge, N.J. McDarby said he took Vioxx daily for four years for arthritis. He is now confined to a wheelchair. He spent 34 days in the hospital and 69 days in a rehabilitation center before coming home. He cannot get up out of a chair, he can't get out of bed on his own, he can't dress himself and hHe needs assistance going to the bathroom.
What is signficant is that Mr. McDarby had significant risk factors when placed on Vioxx - his age, diabetes, high blood pressure, and clogged arteries. In December of 2004 many attorneys would have possibly turned down his case because of the risk factors. I saw a claim involving risk factors as one where Vioxx was in essence throwing gasonline on a fire. You can read the definitive study on risk factors in the Framingham Study.
The News: Once again lazy reporting on many TV outlets. Most reasonable attorneys would not see a $45 verdict as a "W." On a news report here in Atlanta last evenign, the sixty second blurb about the verdict included a teaser about two jury verdicts against Merck. The report said that Merck lost two cases in a State Court in New Jersy, including one verdict for more than four million dollars.
The real verdict on this litigation? Too early to tell. Mike Galpern is up next.