Lawyers for plaintiffs have much more work ahead if they are to convince a jury that Merck is responsible for the death of Robert Ernst, a Texas man who died in his bed at 59 in June 2001 after taking Vioxx, the company's prescription painkiller, for eight months.
This week, lawyers for plaintiffs will move away from presenting evidence that Merck hid Vioxx's risks, and instead focus on the link between Vioxx and Mr. Ernst's death. At the same time, the plaintiffs' lawyers will have to be certain that the jury understands the jumble of Merck documents and e-mail messages that they have already presented.
Plaintiffs' lawyers and Wall Street analysts are paying close attention to the trial, which is being heard in the Brazoria County Courthouse in Angleton, a town of 18,000 about 30 miles south of here. More than 7,000 people have already sued Merck over heart attacks or strokes they claim were caused by Vioxx, the company said when it reported earnings last week.
W. Mark Lanier, who represents Mr. Ernst's widow and children, chose to open his case last week by putting Dr. Nancy Santanello, a senior Merck scientist, on the stand as an "adverse witness." The tactic allowed Mr. Lanier essentially to cross-examine Dr. Santanello - a sure way to keep the jury's attention early in the trial.
But Dr. Santanello generally kept her cool despite Mr. Lanier's fierce questioning and was able to deflect the impact of documents that showed that Merck was concerned about Vioxx's heart risks as early as 1998, even before it began selling the drug.
Dr. Santanello's biggest mistake probably came on Wednesday when she briefly claimed Merck had conducted three clinical trials on humans to examine Vioxx's effects on blood after a large clinical trial in 2000 raised questions about its risks.
In fact, as she later acknowledged, the studies that she mentioned had done little to resolve the question of Vioxx's risk in people using it for long periods of time. One was conducted on monkeys, a second on beagles and a third on the way that doses of Vioxx affected the clotting of blood in healthy young people with arm lacerations.
Even after the 2000 clinical trial, Merck never conducted a large study specifically designed to measure whether the long-term use of Vioxx raised cardiovascular risks - even though Dr. Edward M. Scolnick, Merck's top scientist, said it was essential that Merck run such a clinical trial.
Despite that misstep, Dr. Santanello appeared to have Mr. Lanier frustrated by Wednesday, his third and final day of questioning her. The doctor may have further improved her standing with the jury under gentle questioning from Gerry Lowry, a lawyer for Merck, on Thursday.
Still, Mr. Lanier, who is nothing if not confident, said he had taken a calculated risk by flooding the jury with documents showing Merck's concerns instead of presenting the evidence in chronological order.
"I opted for a thematic order instead of a chronological order," Mr. Lanier said in an interview on Sunday. "We can always add chronology, but I wanted to follow the themes all the way through."
Meanwhile, Merck will continue to argue that Vioxx could not have killed Mr. Ernst because a coroner found his cause of death to be an arrhythmia, or irregular heartbeat, and Vioxx has never been linked to arrhythmias.
Lawyers for the company are sure to attack Dr. David Egilman, an expert witness who testified on Friday that he believed that Vioxx had caused Mr. Ernst to suffer a heart attack, leading to the arrhythmia that killed him.
Under questioning from Mr. Lanier, Dr. Egilman said that Vioxx can promote the formation of blood clots that cause heart attacks by choking the flow of blood to the heart.
Those clots caused Mr. Ernst's death, Dr. Egilman said, in nearly the final words of testimony the jury of seven men and five women heard before the trial was recessed for the weekend.
Mr. Lanier said he would build on Dr. Egilman's testimony this week. "The medicine will be laid open where a layperson can see where Vioxx caused the heart attack which caused the arrhythmia which caused the death of Bob Ernst."
About 20 million people took Vioxx between May 1999, when Merck began selling the drug, and September 2004, when Merck withdrew Vioxx from the market after a clinical trial showed that it was linked to heart attacks and strokes. Merck has already reserved $675 million for its legal costs in defending Vioxx suits.
