Some Vioxx cases earmarked for trial by a New Jersey judge do not involve plaintiffs taking the withdrawn painkiller continuously for 18 months, in spite of being selected as such.

But at least one of 12 cases listed by the judge last week does include claim of injury from Vioxx after taking the drug for 18 months, say defence attorneys. This would mark the first 18-month case acknowledged by Merck, which withdrew Vioxx a year ago after finding increased heart risks.

“There’s a lot of softness in that number [of 12 cases],” said Ted Mayer, one of Merck’s attorneys.

The US drugmaker, which is defending itself against at least 6,400 Vioxx lawsuits claiming harm from the Cox-2 inhibitor with potentially billions of dollars in liability, has previously said it had not seen such a case yet.

But the disparity in length of use purported by plaintiffs in the cases highlights the uncertainty in mass tort claims and Merck’s strategy to fight each case. It also sets up potentially tense arguments over the next step in the biggest batch of Vioxx lawsuits.

A conference with the judge is scheduled for Thursday, in which attorneys for plaintiffs and Merck are expected to negotiate further on the plans for new trials. More than half of those cases are filed in New Jersey state court before Judge Carol Higbee in Atlantic City.

Judge Higbee last week cited 12 cases she had selected for trial because they involved New Jersey victims who had suffered heart attacks, and whose Vioxx exposure appeared to be 18 months.

The judge’s plan was a blow to Merck, because it proposed lining up potentially its toughest cases to defend. Merck withdrew Vioxx after its own study found the risk of heart attacks and strokes doubled after 18 months of continuous use.

In such cases, plaintiffs plan to use Merck’s own science against it. In two previous cases, a loss for Merck in Texas, and a win in Atlantic City, Merck has argued its science was rigorous and said nothing suggested short-term Vioxx use could trigger heart problems. Merck argues that its study said heart risks appeared after 18 months’ continuous use, but were not statistically significant until 30 months’ use.

Merck is expected to argue that Judge Higbee should include a greater variety of cases, including short-term users, in the trial.

Frank Woodside, litigation expert and attorney at Dinsmore & Shohl, said the judge’s plan could be aimed at getting verdicts that could speed up a Merck settlement for all the lawsuits. But even if the judge becomes frustrated, he said, finding the right balance in complicated litigation takes time.

“You just have to realise there’s no quick, easy solution. Never has been. Never will,” Mr Woodside said.

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