NEW ORLEANS (AP) The judge in charge of all federal Vioxx cases has made it almost impossible for people who believe the once-popular painkiller caused a heart attack to produce an expert to testify that is what happened, attorneys say in court papers.
The argument is set out in a 44-page request for a third trial for Evelyn Irvin Plunkett, who says that taking the drug for less than a month caused the heart attack that killed her first husband, Richard “Dickie” Irvin, in 2001.
U.S. District Judge Eldon E. Fallon, who will hear arguments Tuesday from attorneys for Plunkett and manufacturer Merck & Co., has been assigned to handle pretrial matters for all 8,000 federal Vioxx cases. He has said he would try to work out a settlement after hearing the first five last year, but Merck has said it wants each case heard separately.
In cases that have reached verdicts in state or federal court, Merck has won 10 and lost five. Merck is appealing the five cases.
During two earlier trials about Irvin’s death the first a mistrial, the second a Merck victory 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, he wrote, but not about Vioxx.
“The rulings establish a nearly impossible standard for experts testifying on the role of Vioxx in causing death or serious injury,” Plunkett’s attorneys wrote.
They said 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.
Merck’s response said Fallon has considered Baldwin’s and Graham’s credentials five times, and ruled correctly each time.
Plunkett’s attorneys also say Baldwin’s credentials are almost identical to those of Dr. Barry Rayburn, a cardiologist who was allowed to testify for Merck that Vioxx could not have caused the heart attack.
Letting Rayburn testify while excluding Baldwin invades the jury’s area of responsibility by appearing to rule on credibility rather than qualifications, they said.
A second 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.
In their request for a third trial, Plunkett’s attorneys said they 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.