Vioxx lawyers strategize over evidence in Madison County

Steve Gonzalez Feb. 22, 2007, 6:16am

Judge Dan Stack

John Driscoll

Andy Birchfield

Preparations are being made for a five-week Vioxx trial getting under way in Madison County. Plaintiffs and defendants are expected to introduce mounds of complex evidence. Workers here are equipping Judge Daniel Stack's third-floor courtroom with all the bells and whistles to accommodate high-tech presentations. The trial is expected to garner global attention.

Stephen G. Strauss

When lawyers present opening arguments in Madison County's first Vioxx trial next week jurors will for the first time get a feel for what is expected to be a spellbinding five-week trial.

But much of the posturing and strategizing critical to each side's case will have already taken place.

Madison County Circuit Judge Daniel Stack held a four-hour hearing Feb. 20 on "motions in limine," ruling on what evidence may or may not be introduced to the jury.

Attorneys on both sides agreed on many motions, but not all.

Plaintiff's attorney John Driscoll asked Stack to exclude any comment, inference, testimony, or documents suggesting that a verdict for the plaintiff will adversely impact pharmaceutical companies' ability to develop new medications.

Merck attorneys Dan Ball and Steve Strauss of Bryan Cave agreed to leave it out.

Ball and Strauss also agreed to leave out that the outcome of the trial will have an impact on Merck's stock price and they also agreed to leave out that this case may cause an increase in the cost of pharmaceutical drugs to the public.

After attorneys dueled, Stack ruled that Merck could not introduce plaintiffs' use of marijuana or any other human frailties.

Plaintiff Frank Schwaller filed suit in 2005, alleging that Vioxx caused or significantly contributed to the death of his 52-year-old wife who died suddenly from a heart attack after using Vioxx.

The attorneys also could not agree on Schwaller's wife's medical conditions that are unrelated to the ones at issue in the lawsuit.

Stack ruled that there will be no mention of any medical conditions.

Merck also will not be allowed to introduce evidence, even though it was allowed in other Vioxx trials, that several key Merck employees in charge of Vioxx took the drug for their own health problems.

"It is highly prejudicial," plaintiff attorney Andy D. Birchfield, Jr. of Alabama told Stack.

"It's a powerful argument, but it's not relevant," he added.

Merck attorney Dan Ball countered, "It's highly relevant judge."

"If they knowingly believe they are killing people why are they taking it," Ball added.

Merck also will not be allowed to mention its patient assistance program which allows uninsured individuals to obtain prescription medication at no cost or at a significantly lower price.

It also cannot mention that the plaintiff was a recipient of free drugs.

Merck cannot mention that it donated millions of dollars in HIV vaccines to Africa while working with Bill Gates and the government of Botswana.

Merck cannot mention that the plaintiffs' attorneys' and their law firms specialize in personal injury or product liability, or mention the "lawsuit crisis" or other similar terms, and cannot mention or suggest that Vioxx was taken off the market due to "media hype" caused by attorneys or the media.

On top of that, Merck cannot introduce a report showing that a large percentage of the medical community would like Vioxx placed back on the market.

A recent study by the Competitive Enterprise Institute (CEI) indicated that 80 percent of the orthopedic surgeons it asked believe Vioxx ought to be back on the market.

The study showed a majority of prescribing physicians surveyed recently believe the benefits derived from the drug outweigh the risks.

Merck also cannot suggest in any way that an award of punitive damages is unconstitutional, illegal, or not supported by the current state of law.

The pharmaceutical also will not be able to mention or infer that the Food and Drug Administration's approval of Vioxx means that Merck met its standard of care and fulfilled its duty to warn.

Merck also cannot introduce evidence of lawyer advertising or solicitation for Vioxx clients.

It also cannot mention that it could not change its Vioxx label to include warnings of heart risks without approval from the FDA.

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