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Vioxx death trial opens

The court brawl is all but underway for Merck, the beleaguered maker of COX-2 inhibitor Vioxx, as it attempts to defend itself legally against the first of potentially thousands of claims that Vioxx was a direct cause of death in some patients

The court brawl is all but underway for Merck, the beleaguered maker of COX-2 inhibitor Vioxx, as it attempts to defend itself legally against the first of potentially thousands of claims that Vioxx was a direct cause of death in some patients.

Some feel that the company is staring down the wrong end of a double-barrelled billion dollar shotgun, but Merck remains adamant that as soon as it was clear on the cardiovascular dangers of Vioxx it pulled the product voluntarily from the global marketplace.

Merck's lawyers attempted to delay the trial on the basis that the intense media coverage could unfairly prejudice jurors against Vioxx. However, they were unsuccessful and a Texas judge has started to select 12 jurors for what may be a month-long trial. Opening arguments and witness statements are expected to come later this week.

With the company facing potentially $10bn or more in liability, according to analysts, early victories combined with rulings that penetrate the credibility of evidence pointing to Vioxx as a direct cause of death may take the wind out of subsequent claims. The mood at Merck is understood to be tentative.

ìYou really can't underestimate the fundamentals - winning the first case and establishing the momentum,î commented Arvin Maskin, chairman of mass tort defence practice at Weil, Gotshal & Manges, a New York law firm.

Conversely, a string of losses for Merck in the early stages may fuel the momentum of the entire prosecution case, and some fear that Merck's key points of defence lie in something of a indefinite area - proving that it did not keep hidden `secret' trials that revealed Vioxx' side effects and trying to disprove evidence, on a scientific level, that alleges a direct causal link with death.

While the company's move to withdraw the product in September last year indicate its acceptance of the risks associated with Vioxx, Merck is expected to focus on dissolving a number of cases from claimants who may not have taken the drug for a sufficient duration for it to have been the leading factor in their death.

The company has argued that the severity of cardiovascular risk increases significantly only after 18 months of continuous treatment.

As for the future of Vioxx, it is notable that some national drugs regulators, including the Canadian body, are holding the door slightly ajar for Vioxx to return to the market at some point.

Over the next four weeks, however, Merck will need luck and a success in court to redeem its credibility.

30th September 2008

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