The case of Carol Ernst versus Merck is the first of more than 2,400 lawsuits against the drug giant. Ernst claims her husband suffered a heart attack as a result of taking the drug Vioxx. The Merck pharmaceutical company says the drug had nothing to do with Robert Ernst's death. Ernst must bring a burden of proof against the company, showing that Merck marketed and sold the drug while knowing it was dangerous. A 2004 study showed people taking the drug for more than 18 months had an increased risk of heart attack. Merck withdrew Vioxx from the market in September. Joel Androphy is a partner in the Houston firm Berg and Androphy. He says Merck has a big fight ahead.
Merck asked State District Judge Ben Hardin for a delay in the trial. The company contends the publicity in the case and the fact that State Attorney General Greg Abbott also filed suit will restrict Merck's ability to receive a fair trial. But Judge Hardin has not granted the delay. He wants to review jury questionaires from the pool of 100 jurors.
But University of Houston Associate Professor Joan Krauss says finding a fair jury pool isn't that simple. Krauss is the co-director of the UH Health Law and Policy Institute. She says the publicity surrounding Vioxx is only one factor.
Jurors should be selected by Wednesday and testimony could start as early as Thursday. Krauss says the ruling in this case will have some impact on the other lawsuits, but one case isn't enough to determine the outcome of the thousands still pending.
And on the flip side, should Merck win the case, Krauss says some plaintiff's may drop their suits but many more will persist in litigation. Merck estimates about 20 million people took the drug Vioxx before it was pulled from the market.