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Commentary

Early comments on Humeston defense verdict
Ted Frank, PointofLaw.com, 11-3-05

Our sister Web site, Point of Law, is running an ongoing (and always interesting) analysis of Vioxx litigation, including the recent New Jersey verdict in Merck’s favor.

One cannot draw too many conclusions from this case. As plaintiffs go, Frederick Humeston was a poor one. He had numerous health problems; he took Vioxx only intermittently for two months; and even if one assumes causation, his injury was relatively minor…
In addition, the fact that he was already in a dispute with his employer over a disability claim hurt Humeston's credibility, especially when he denied any stress from learning shortly before his heart attack that a PI was investigating whether he was faking his injury.
Still, one can draw some conclusions: a relatively educated jury will consider issues of causation if not overwhelmed by sympathy. Overstated expert testimony only goes so far without that sympathy. A jury with relevant employment experience is capable of seeing through the attempts by plaintiffs' attorneys to take e-mails out of context.

With thousands of cases against Merck remaining, this saga is far from over. Also, it bears repeating what the lack of a loser-pays system in the U.S. means: "Merck still loses for winning: they're out the millions of dollars they spent to try the case, plus the person-months of executive time spent preparing for and testifying in depositions or trial."



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