NEW ORLEANS (AP) A woman whose husband died of a heart attack after taking the painkiller Vioxx deserves another chance to convince a jury that the drug caused his death because an expert witness in an earlier trial misstated his credentials, the woman’s lawyer said Tuesday.
Evelyn Irvin Plunkett should get a third federal trial of her lawsuit claiming that the once-popular painkiller caused her first husband’s fatal heart attack because a cardiologist who testified for manufacturer Merck & Co. did not reveal that his certification as a physician had lapsed, attorney Andy Birchfield said.
“That cast a doubt over all his other qualifications” and everything else he said, Birchfield told U.S. District Judge Eldon Fallon, who has been assigned to handle pretrial matters for all 8,000 federal Vioxx cases.
The first trial of Plunkett’s lawsuit ended with a hung jury; in the second, jurors cleared Merck.
In that second trial, Dr. Barry Rayburn testified that the dose taken by Richard “Dickie” Irvin for less than a month could not have caused his heart attack.
When he was brought to the stand, he was asked whether he was board-certified. His answer was, “Yes, I passed boards in internal medicine and in cardiovascular disease.” However, during a later trial, he said his board certification had lapsed. It had done so before Plunkett’s trial in February 2006, Birchfield said.
Merck attorney Brian Currey said Rayburn’s testimony was “at worst ambiguous.”
Rayburn testified in a later trial in New Jersey that he believed his New Orleans testimony had been truthful, and that he never meant to misrepresent anything, Currey said.
Even if it was perjured, he said, the 5th U.S. Circuit Court of Appeals in New Orleans has held that perjured testimony was grounds for overturning a verdict only if it would have changed the trial’s outcome, could not have been uncovered by attorneys beforehand, and invalidated other testimony.
Merck withdrew Vioxx from the market on Sept. 30, 2004. The company has been swamped by more than 27,000 personal injury lawsuits alleging harm from Vioxx.
In cases that have reached verdicts in state or federal court, Merck has won 10 and lost five. Merck is appealing the five losses.
Fallon has said he would try to work out a settlement after hearing the first five federal suits last year, but Merck has said it wants each case heard separately.
In other arguments, Plunkett’s lawyers claim Fallon has made it almost impossible for people who believe Vioxx caused a heart attack to produce an expert to testify to that effect.
During two earlier trials about Irvin’s death, the judge refused to let either the cardiologist who treated Irvin or the pathologist who performed an autopsy on his body testify that Vioxx had caused his heart attack.
Dr. Thomas Baldwin, a cardiologist who had taken 100 patients off of Vioxx after reading studies about it, and Dr. Michael Graham, the pathologist, both were experts in their fields, Fallon wrote, but not about Vioxx.
Plunkett’s lawyers said in court papers that Fallon gave too much importance to whether a doctor has prescribed the drug, and the importance of a background in clinical research. They said the circumstances under which a cardiologist or pathologist would have prescribed Vioxx are rare. And, they said, practicing doctors rely mainly on published materials and study results, rather than their own research.
They also say that Baldwin’s credentials are almost identical to Rayburn’s.
Merck’s response said Fallon has considered Baldwin’s and Graham’s credentials five times, and ruled correctly each time.
Plunkett’s attorneys said they have asked Fallon to clarify what credentials he would need to certify someone as an expert who could testify about Vioxx, and to give then 30 to 60 days to find such an expert.
Another losing plaintiff, Anthony Wayne Dedrick of Waynesboro, Tenn., who took Vioxx for about six months and survived his heart attack, also has asked for a retrial. However, that request has been sealed.
Fallon has not said when he will rule on either Dedrick’s or Plunkett’s request.