Cheryl Rogers says she’s no liar.
The plaintiff at the center of the first trial from pain reliever Vioxx said Monday she’s furious that the drug’s manufacturer, Merck & Co., is branding her untruthful in court documents filed earlier this month in Alabama.
“Sitting back and crying and being emotional doesn’t get you anywhere,” said Rogers, who believes Vioxx played a role in the 2001 death of her 42-year-old husband, Brad.
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. That opened the lawsuit floodgates; more than 2,400 have been filed.
Rogers’ trial is set for May 23rd in Clay County Circuit Court in Ashland, Ala. As it approaches, the discourse between the two sides has become fierce, with allegations of fraud, smear campaigns and intimidation flying.
Circuit Court Judge John Rochester will hear arguments in the case on Tuesday.
Last week, Rogers’ lawyers filed a motion accusing Merck of violating the court’s protective order when it disclosed information about her husband. They also allege Merck violated federal laws mandating the confidentiality of medical records. Rogers’ lawyers want the protective order lifted so all can see the documents they’ve obtained in preparing for the trial.
Merck’s disclosures stemmed from a motion accusing Rogers of committing fraud against the court. The company said the Vioxx samples 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 Rogers’ health issues, including high blood pressure and high cholesterol.
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 important to bring to the judge’s attention. He noted the court admitted the motion.
The stakes for Merck are high: Analysts estimate the lawsuits could cost the company up to $18 billion if verdicts go against it, so both investors and other plaintiff lawyers will be watching the first case carefully.
In response to Merck’s motion, 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.”
Rogers, in an interview with The Associated Press, said she never imagined that when she filed her lawsuit she would be at the center of such public, bitter dispute.
“I didn’t think it would be easy,” Rogers said. “But I never expected this.”
Rogers insisted she is not committing fraud. She said she just got confused and the samples she gave Merck belonged to her mother. Rogers lives in a trailer beside her parents’ home and she and her husband spent most of their free time there.
“A clerical error” is how Rogers explains the lack of a record of her husband receiving the Vioxx samples. Numerous people will testify that they knew Rogers was taking Vioxx, and according to Birchfield that is the crucial issue, not where samples came from.
The Rogers’ 9-year-old son, Kyle, may be called to testify.
Rogers said that between raising her son alone and working long hours as an emergency medical technician, she doesn’t have much time to dwell on the lawsuit.
About once a week she visits her husband’s grave, which is on the family’s 50 acres of property, about a quarter-mile from their house. It is decorated with lots of flowers and tiny ceramic animals left by Kyle.
Rogers said she isn’t worried about testifying, even though she realizes Merck lawyers may be ruthless in their questioning.
“I’m just going to be honest,” said Rogers. “I did nothing wrong. I have no problems sleeping at night.”