First Vioxx Trial

Angleton, TX—While plaintiffs’ expert, Dr. David Egilman, continued his testimony on Friday, a flurry of activity was taking place behind the scenes to block crucial testimony from the coroner who examined Bob Ernst.

Merck Wants Coroner’s Testimony Blocked

On Tuesday, the parties deposed the coroner, Dr. Maria Araneta, who examined Bob Ernst. According to the Associated Press, Dr. Araneta lives in the United Arab Emirates where she works as a pathologist. Plaintiffs arranged for her transportation here and intended to call Dr. Araneta as a surprise witness on Tuesday. She was expected to testify that Bob Ernst likely died of a heart attack, but died so suddenly that his heart did not show any evidence of a heart attack. Merck objected to her testimony because she had not been deposed earlier and was not on the plaintiffs’ witness list.Likely anticipating that Dr. Araneta would not be called as a witness, Merck has relied heavily on her autopsy report, which lists Mr. Ernst’s cause of death as arrhythmia and arteriosclerosis, not a heart attack. The distinction is important for Merck because they contend that there is no evidence that Vioxx causes arrhythmias. Chatter in the legal community has routinely cited causation as the plaintiffs’ greatest hurdle. Dr. Araneta’s testimony would go along way towards establishing that Vioxx caused Mr. Ernst’s death.

Brazoria County’s Judge Ben Hardin ruled on Thursday that Dr. Araneta’s testimony is admissible. Merck appealed the ruling to the Texas Court of Appeals, which was denied on Friday. Illustrating just how much weight Merck has put on Dr. Araneta’s autopsy report, Merck filed a further appeal with the Texas Supreme Court on Friday.

Cross-Examination of Plaintiffs’ Expert Continues

Merck’s lawyer, David Kiernan, continued his cross-examination of Dr. Egilman. Kiernan showed the jury plaintiffs’ expert designation, which listed Dr. Egilman’s opinions in the case. That expert designation was filed with the court, however, before the time that Dr. Egilman testified he had reviewed any documents in the case. Dr. Egilman explained that plaintiffs’ expert designation merely anticipated his opinions. He cited examples of other cases in which he formulated opinions after reviewing documents contrary to the positions held by parties who had retained him. He testified that that could have happened in this case.

Kiernan read from an evaluation written by a student who had taken a course from Dr. Egilman at Brown University, where he teaches courses in medical ethics. The student wrote that you should only take Dr. Egilman’s course if you want to sit through three hours of him bashing “corporate America and science as we know it.” When Dr. Egilman asked Kiernan to read the entire evaluation, he refused. Effectively retracing any ground gained by Kiernan, Lanier read from several student evaluations praising Dr. Egilman and his courses on redirect.

Dr. Egilman was asked about his fees in this and other cases. He testified that he has earned between 2 million and 2.5 million dollars for his expert testimony over the last 25 years. On redirect, he explained that some of that money was used to pay his expenses and staff of researchers. He also testified, in what some might term a “setup,” that he donated his fees for testifying in this case to his non-profit global health foundation and to the cardiology wing at the local hospital.

Merck’s cross-examination of Dr. Egilman appeared at times poorly allocated. Instead of focusing on a random student evaluation, perhaps more time could have been spent exploring the basis of Dr. Egilman’s opinions about Merck’s studies or his years of testifying as an expert witness. While Dr. Egilman is no stranger to these types of attacks, these areas would likely have proven more fruitful for Merck. Instead, Merck’s “cheap shots” at Dr. Egilman leave a person wondering whether Dr. Egilman’s opinions are challengeable at all.

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