A U.S. judge in New Orleans threw out a Vioxx victory for Merck, citing misrepresentation by a key company witness and clearing the way for a third trial in the case of a widow who charges that the painkiller caused her husband's fatal heart attack. 

U.S. District Judge Eldon Fallon on Tuesday granted Evelyn Irvin Plunkett's motion for a new trial and vacated a jury judgment in favor of Merck (MRK.N: Quote, Profile , Research) "due to a misrepresentation by one of Merck's primary witnesses that prevented Ms. Plunkett from fully and fairly presenting her case."

Fallon, who oversees all federal Vioxx lawsuits, said in his ruling that Dr. Barry Rayburn misrepresented his credentials to the court and jury in the trial by testifying he was a board-certified cardiologist when he was not.

Rayburn, who teaches at a medical school and is in private practice in Alabama, is a "retained expert witness" for Merck and has since renewed his lapsed board certification, said Ted Mayer, an outside attorney who works on the Vioxx litigation.

Mayer said Merck will be ready if a third Plunkett trial should come and predicted the plaintiff will face an uphill battle in court.

"The fact is that this man had abundant risk factors which explain what happened to him," he said.

Mayer said Rayburn has testified in only one other case, a New Jersey trial in which plaintiff John McDarby alleged the company failed to warn consumers of the drug's cardiovascular risks. He was awarded damages of more than $13 million in April 2006. Merck's motion for a new trial is pending.



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