A judge on Tuesday declined to postpone jury selection in the nation’s first state-level wrongful death trial related to the painkiller Vioxx because he said he would not assume potential jurors were biased by pretrial publicity. 

But state District Judge Ben Hardin also told lawyers for Merck & Co., the manufacturer of Vioxx, that he would examine questionnaires answered by the pool of 100 potential jurors next week before making a final decision on Merck’s request for a trial delay.

Merck asked for a two-month delay to allow for a “cooling off” period for any bias that could taint a jury pool arising from news coverage of a lawsuit that Texas Attorney General Greg Abbott filed last week against the drugmaker.

Abbott alleges in the $250 million lawsuit that Merck defrauded Texans by representing Vioxx as safe when pushing for it to be included on the state’s list of medicines approved for Medicaid.

Merck lawyer Richard Josephson said Abbott’s lawsuit makes all Texas taxpayers potential parties to litigation, which could breed bias.

“It’s difficult to see how jurors who hear that could be impartial when the attorney general is standing up and saying he’s already made a decision that Merck is guilty,” Josephson said.

Merck’s motion also noted that a law firm which helped the attorney general’s office on the lawsuit represents at least six plaintiffs suing the company.

“The timing of the (state) lawsuit is hardly a coincidence,” according to Merck’s motion.

Ken Soh, a plaintiff’s lawyer in the case scheduled to begin next week in Brazoria County, noted that regional newspapers gave minimal coverage to Abbott’s lawsuit and other Vioxx-related issues.

The Merck filing also said a story in the “national media” that cited a privileged attorney-client communication could prejudice a jury against it. The Associated Press reported June 22 that Merck scientists had contacted company attorneys in 2000 about reformulating Vioxx over concerns it could cause negative cardiovascular side effects.

Hardin said attorneys can hash out questions to include on questionnaires intended to ferret out bias at a hearing Thursday. They also can gauge any taint during jury selection.

“For now, we’re going to keep going,” Hardin said.

Merck withdrew the drug in September when research showed that patients who took it for 18 months or longer more than doubled their risk for heart attack and stroke. Since then, more than 2,400 Vioxx lawsuits have been filed nationwide.

Lead plaintiff’s attorney Mark Lanier said Monday that Merck signed an agreement with him in May not to postpone the trial for any reason other than the health of the lead attorneys. Lanier represents a woman suing New Jersey-based Merck over her husband’s 2001 death.



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