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On September 26, 2006, a federal jury in Louisiana produced a “Not Guilty” verdict in one of the first trials against Merck, the manufacturer of the painkiller, Vioxx. The plaintiff, Robert Garry Smith, a 56-year old man from Kentucky, alleged the Vioxx he had taken for 4 1/2 months to alleviate knee pain caused his heart attack.

So far, ten Vioxx cases have been tried in federal and state courts with seemingly equal results- five wins for Merck, four for the Plaintiffs, and one headed to retrial. Plaintiffs’ and Defense counsels were able to select cases from a pool of thousands to bring to trial, and it has been noted that the Smith case was essentially a Merck “pick.” Plaintiffs knew the Smith case would be a hard sell, primarily for the reason that the Plaintiff only used Vioxx for 4 ½ months. Merck recalled Vioxx in 2004 after a study concluded that patients who had taken Vioxx for a period of at least 18 months suffered an increased risk for heart attacks, a significantly lengthier time frame. Smith also engaged in strenuous activity, shoveling snow, just before the onset of his heart attack. Health factors such as his high blood pressure and high cholesterol could have also contributed to Smith’s attack. In effect, the jury simply could not pinpoint Vioxx as the primary catalyst in Smith’s injury.

According to Phil Beck, Merck’s defense lawyer, the legal strategy for the defense will be to “keep trying cases one at a time.” David Logan, the dean of law at Roger Williams University, believes that it isn’t necessarily a matter of winning or losing for Merck. Merck’s trial losses may force the company into negotiations for a global-type settlement because when the company does lose, it loses big in terms of damages ordered.

One thing is for sure, only time and money will tell.

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