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Pharma & Bio Ingredients
Last fall, Higbee -- facing the task of dealing with thousands of Vioxx cases -- told lawyers in the cases she planned to consolidate seven cases into three trials, with those of Thomas Cona and John McDarby combined in the first.
But Merck objected, telling her that doing so would make for a "Frankenstein's monster" of a case that would confuse jurors because of the different sets of circumstances surrounding the men, both of whom survived heart attacks they blame on Vioxx.
Cona, 59, of Cherry Hill, says he took Vioxx for more than two years before suffering a heart attack in June 2003. McDarby, 76, of Park Ridge, took it for about four years.
Their attorneys contend that the cases have enough in common to be heard in one trial, accelerating the pace with which Higbee -- the lone New Jersey judge hearing Vioxx cases -- disposes of a docket that has grown to 5,093 cases.
Her ruling Thursday came after a one-hour hearing in which Merck attorney Christy Jones argued that the two men had different risk factors for heart disease, and that their doctors used different information in deciding to prescribe it for them.
Jones said Cona's medical records don't support his contention that he was a long-term user of Vioxx, and that that would be a central part of Merck's defense in his case. She said Merck's right to a fair trial shouldn't be sacrificed in the interest of judicial expediency, but lawyers for Cona and McDarby said it wouldn't be.
"We're dealing with common questions of law, common injuries in both cases," said Richard D. Meadow, a lawyer representing Cona.
Higbee said there was precedent for combining plaintiffs in mass tort cases like Vioxx, and that it would be redundant -- and time-consuming -- to have separate trials rehashing the same topics with the same expert witnesses from one trial to the next.
She acknowledged the differences in the individual cases but said jurors would be able to cope.
"The idea that this is going to be a `Frankenstein's monster' ... seems a little bit overstated," she said, using a phrase originally included in Merck's brief in support of breaking the trial into two.
Chuck Harrell, a spokesman for Merck's legal team, said no decision had been made about whether to appeal the ruling.
"The trial team will look at it, consider the options and make a decision," said Harrell.
Would-be jurors report to court Monday, and jury selection is scheduled for Wednesday in the case. Opening arguments are set for March 6.
