The jury deciding the first wrongful-death case against Merck & Co. over its withdrawn painkiller Vioxx watched a videotaped deposition yesterday of a medical examiner whose testimony poses a big challenge to Merck’s defense. 

The Whitehouse Station, N.J., pharmaceuticals company failed several attempts to block the jury from viewing the testimony, including an emergency appeal to the state supreme court, which denied Merck’s motion early yesterday. The coroner said during hours of questioning that Robert Ernst, a 59-year-old tri-athlete, most likely had a heart attack before succumbing to an arrhythmia, or irregular heart beat, that ultimately caused his death.

The testimony is crucial because Merck has acknowledged a link between Vioxx and heart attacks and strokes, but has maintained that there is no such link between Vioxx and arrhythmias. The coroner’s testimony gives a big boost to one of the plaintiff’s biggest challenges, which was making a link between Vioxx and arrhythmia.

Merck was relying on the medical examiner’s written report that made no mention of heart attack to bolster its defense that Vioxx couldn’t have caused Mr. Ernst’s death. Merck opposed her testimony, accusing the plaintiff attorney in the case, Mark Lanier, of unfairly producing a surprise witness.

In the videotaped questioning by Merck lawyer Joseph Piorkowski Jr., Maria Araneta said Mr. Ernst could have died too quickly after he showed symptoms of heart trouble to show evidence of a heart attack in an autopsy. She said “more likely than not” that Mr. Ernst had a heart attack because arrhythmias don’t happen spontaneously. Further, though she said she found no evidence of a blood clot during the exam, she said clots generally are hard to find in an autopsy because they tend to dissolve before an exam.

At first, jurors seemed interested in Dr. Araneta’s testimony, sitting forward in their seats as they watched her on a giant screen, some taking notes. After a few hours, several were yawning or resting their heads on their hands.

Merck’s attorney, Mr. Piorkowski, got Dr. Araneta to acknowledge that Mr. Ernst’s death could have occurred without a heart attack or blood clot. “It can occur. Anything is possible,” she said. She stressed she didn’t think that happened in this case. When he suggested she was changing her story, she explained it wasn’t a change, just an elaboration.

Mr. Lanier has said he may show jurors as early as today the videotaped deposition of Raymond Gilmartin, Merck’s chief executive and chairman for more than a decade until May.



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