NEW YORK – Merck & co. has asked that the first Vioxx personal injury lawsuit scheduled to come to trial this month be dismissed, saying that a man who died of a heart attack after being prescribed Vioxx never took the drug.

The drug maker, which voluntarily took Vioxx off the market in late September, contends that the man’s widow has repeatedly lied and produced false evidence.

In a court filing last month Merck says that Cheryl Rogers, an Alabama woman who filed a wrongful death lawsuit on behalf of her deceased husband, Howard Rogers, lied in her deposition because the Vioxx pills that she claims led him to suffer a fatal heart attack in September 2001 did not leave the company until six months after he died.

Rogers claims her husband had been taking Vioxx to alleviate shoulder pain.

“The court should dismiss plaintiffs complaint with prejudice because plaintiff has perpetrated a fraud on both Merck and the court,” the drug company said in its motion.

Rogers’ lawsuit, which is scheduled to be heard in an Alabama state court on May 23, is one of thousands of claims that have been brought against Merck by people who state that Vioxx caused them to suffer heart attacks or strokes.

While other legal actions would not be affected by the outcome of the Rogers case, a win by Merck would give the company an important psychological victory as it faces more suits that could determine its future.

Analysts estimate that the drug maker could be forced to pay $15 billion or more to settle all of the Vioxx-related claims.

A hearing on Merck’s motion to dismiss Rogers’ lawsuit was tentatively scheduled in the same Alabama court for April 26. At presstime no details of that hearing were available.

Lawyers representing Rogers have disputed Merck’s claim that her husband could not have died from an adverse reaction to Vioxx. They say they have evidence that Rogers took Vioxx before he died.

The law firm, Montgomery, AL-based Beasley, Allen, Crow, Methvin, Portis & Miles, represents thousands of those who are suing or considering bringing legal action against Merck.

“This is a hardball tactic, claiming the plaintiff lied under oath,” remarks Rogers’ attorney, Andy Birchfield. “I’m not surprised. Merck has a lot riding on this.”

But Merck’s lawyers say there are too many inconsistencies in Rogers’ testimony for her to be believable.

For instance, they note, she initially said that her husband “took Vioxx for a long time on a very regular basis” but she later admitted that he had visited a doctor on August 10, 2001, 25 days before he died and received a prescription for Vioxx.

Merck maintains that the prescription was never filled, but Rogers says that, instead of filling the prescription, her husband took samples he had received from his physician in the month before his death.

At a deposition last January Rogers offered an unopened pack of 32 Vioxx samples pills to back her claim. Merck’s lawyers contend that because the pack was unopened, her husband could not have taken the pills.

In its most recent filing Merck notes that Rogers then changed her story, claiming that her husband had been given three sample packs, totaling 96 pills. He had taken about 20 pills before he died, she said.

After he died, Rogers stated, she put the rest of the pills in her safe and put the other samples packs in her car. The pills in the car were subsequently stolen, she claimed. The 12 remaining pills from the package of 32 were later presented to Merck.

Suspicious of Rogers’ story, Merck checked the samples, which federal rules require to be closely tracked. The company said its records showed that the sample did not arrive at its distribution facility until March 2002, six months after her husband suffered his fatal heart attack.

The physician who treated Rogers’ husband has also contradicted her story, saying that he usually gave out only two to five days’ worth of Vioxx.



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