Sides Spar Over Access to Doctors Hearing Held in Patients’ Suit Against Merck

NEW ORLEANS – With the first trial looming among possibly hundreds over Merck’s withdrawn painkiller Vioxx, lawyers for the two sides sparred in federal court Wednesday over access to doctors and sales representatives.

Merck is being sued in both state and federal court by thousands who claim injury and even death from the drug. While the initial case will be heard in state court in Texas early next month, hundreds of federal suits against the company have been consolidated in New Orleans, where a federal judge, Eldon Fallon, is considered an expert arbiter in such complicated national court fights.

The two sides are squabbling over mountains of documents and patient records – a fight likely to continue under Fallon’s auspices until the first federal lawsuits are heard later in the year. Huge sums are at stake: Analysts say the company’s liability could be as much as $18 billion.

Wednesday’s hearing focused on two points deemed critical by patients suing the drug giant: whether they will have open access to records concerning Merck’s 3,000-strong sales force – which they want – and whether Merck can have access to doctors who prescribed them the drug – which they don’t.

The purported Vioxx-victims want to keep Merck from contact with doctors who prescribed the drug – fearful, they say, that the drug company will influence their testimony. Merck argues against the prohibition, for exactly the same reason.

It cites a memo from the other side which says “preparation of these critical witnesses is the key!” and goes on: “if the treating physicians are supportive, you will have hit a home run!”

Earlier, the judge came down exactly in the middle, ordering on June 6 that if one side gets access to the doctors, so should the other side. Wednesday, patients’ lawyers urged him to reconsider, saying their cases could be harmed if Merck had unfettered access to the doctors.

“There is not one single instance of collusion by an attorney meeting with any plaintiffs’ treating physician,” patients’ lawyer Russell Herman argued Wednesday.

The judge agreed to reconsider his earlier decision, suggesting both sides could meet with some doctors at the same time – doctors who have been sued. Still, this likely represents only a small percentage of doctors involved.

Another contentious point is information on the Merck sales team, which persuaded doctors to prescribe the drug.

Merck insists it would put an undue strain on the company to turn over all of its sales force records. But the patients and their lawyers say information about how the Merck team sold doctors on Vioxx is crucial. They contend that sales representatives are doctors’ main source of information about new drugs, in court papers.

And the lawyers – citing independent studies of previous drugs – say that high drug sales are maintained through the efforts of companies’ marketing forces. Most important for their case, they cite a World Health Organization study that says marketers, in general, withhold safety concerns about drugs when pitching them to doctors.

About Vioxx, the lawyers suggest in court papers, the marketing campaign was extensive. “The Vioxx sales force was provided with detailed information about physicians, their wives and recreational activities to assist in the promotional effort and the targeting of particular physicians.”

Fallon put off a decision on the issue, saying he wanted to schedule a full-blown hearing to decide it.

Vioxx was taken from the market in September after a study showed it doubled patients’ risk of heart attacks and strokes. The wrongful death and injury lawsuits against the company contend it hid Vioxx’s risks.