Merck Wants Wrongful Death Suit Dismissed
ASHLAND, Ala. — Lawyers for Merck & Co. asked a judge Tuesday to throw out a wrongful death lawsuit that claims the pain reliever Vioxx contributed to the 2001 death of a 42-year-old Alabama man.
Seeking to shelve the first Vioxx suit set for trial, Merck attorney Mike Brock said the medicine Brad Rogers allegedly took did not even leave the company until after he died. The claim that Vioxx was a factor in the death is "an impossibility," Brock said.
But lawyers for Rogers’ wife, Cheryl, told Circuit Judge John Rochester they had expert medical testimony showing Vioxx caused the death and that the wife and other family members will testify they saw Rogers take Vioxx before he died.
Rochester, who focused the hearing on the Merck motion for dismissal, said he will rule by the end of the week.
Brock urged Rochester to be "the gatekeeper" against the kind of flawed evidence used in bringing the lawsuit. But during the hearing, the judge commented to Brock that lawyers for Cheryl Rogers might be able to establish through other means that her husband was taking the Merck drug.
Merck pulled Vioxx off the market last September after a study showed it doubled the risk of heart attacks and strokes in patients taking the drug for more than 18 months. More than 2,400 lawsuits have been filed involving Vioxx, but the Rogers case, with a May 23 trial date in rural Clay County, is the first in line for a jury to hear.
Merck’s dismissal motion contends the Vioxx samples Cheryl Rogers provided to them as the medicine her husband was taking didn’t leave the company until six months after he died. Moreover, the doctor who was treating her husband said he had no record of giving him Vioxx samples.
As part of the motion, Merck released depositions and records which noted some of Brad Rogers’ health issues, including high blood pressure and high cholesterol.
Cheryl Rogers has said she just got confused and the samples she gave Merck belonged to her mother, not her husband. She lives in a trailer beside her parents’ home and she and her husband spent most of their free time there, she said.
"A clerical error" is how Cheryl Rogers explains the lack of a record of her husband receiving the Vioxx samples.
During the hearing, one of her attorneys, Jere Beasley, said there was "no question" that Brad Rogers was taking Vioxx.
In response to Merck’s dismissal motion, Cheryl Rogers’ lawyers filed a brief accusing the drug maker of conducting a smear campaign against their client to poison the local jury pool. They allege Merck’s actions are just an extension of the company’s history of intimidating doctors who questioned Vioxx’s safety.
Included in the plaintiff lawyers’ filing is a letter from Stanford University medical professor Dr. James Fries to Merck CEO Raymond Gilmartin. It says the company "systematically attacked those investigators or speakers who expressed what Merck staff felt were critical opinions in a manner which seriously impinges on academic freedom."
Another document is a dossier on the activities of Dr. Gurkipal Singh, who Merck regarded as a Vioxx critic.
"Merck’s strategy is just to attack Cheryl’s credibility," said Andy Birchfield, one of Rogers’ lawyers. "It is what they have done before."
Merck’s disclosures about Brad Rogers’ health stemmed from its motion accusing Cheryl Rogers of committing fraud against the court.
In a statement, Ted Mayer, one of Merck’s lawyers, said the motion contained important information in the Rogers case which the company believed was essential to bring to the judge’s attention. He noted the court admitted the motion.
In midday trading Tuesday, Merck shares fell 9 cents to $33.83 on the New York Stock Exchange. The stock has traded in a 52-week range of $25.60 to $48.78.
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