NEW YORK—Former Merck & Co. Chairman and Chief Executive Raymond Gilmartin has agreed to a plaintiff lawyers’ request that he testify at a Vioxx trial slated to begin in Atlantic City in late February, both sides said.

Plaintiff lawyer Mark Lanier said he requested Gilmartin’s presence and intends to call him because “when you have to look a jury in the eye it is harder to fudge.”

Gilmartin has given testimony in videotaped depositions, but Lanier said that it is always better to have a live witness than a tape. He called the depositions “canned speeches” and said it is harder for witnesses to give soliloquies or avoid questions in the presence of a judge.

Lanier said he intends to ask Gilmartin questions that weren’t asked in depositions but wouldn’t specify what they were.

A Merck official said the company believes Gilmartin will be a strong witness, noting his performance in front of a Senate committee hearing in late 2004, when he answered questions about the withdrawal of the pain reliever in September 2004. The drug was taken off the market after a study showed it doubled patients’ risk of heart attacks and strokes when taken for longer than 18 months.

Gilmartin retired last year and was head of the company when Vioxx was pulled.

“Mr. Gilmartin has a good story to tell about Merck’s responsible actions concerning Vioxx and the voluntary withdrawal of the product,” said Kent Jarrell, a Merck spokesman.

Earlier Tuesday, Merck said the number of lawsuits filed against it in connection with the drug has risen to about 9,650 from about 9,200.

Merck also announced it had sent aside an additional $295 million for litigation expenses, bringing the total amount it has earmarked for legal costs to $970 million. However, the company said it spent $285 million on defense costs last year, leaving it with $685 million, which it believes will last through 2007.

Lanier won the first Vioxx trial last summer. Since then, Merck has won a case while the third ended in a mistrial. A fourth case started in Texas earlier this month.

The upcoming trial in New Jersey is slated to combine two plaintiffs, each a man who suffered a nonfatal heart attack after taking Vioxx for more than 18 months. Lanier represents one of the men.



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