The Vioxx pills that an Alabama widow claims caused her husband’s death Sept. 4, 2001, were not on the market until a half year later, attorneys for Merck Pharmaceutical said Tuesday in asking Clay County Circuit Court to dismiss the wrongful death case as bogus.
“This evidence demonstrates, at minimum, that plaintiff’s claim is predicated on an impossibility,” the motion contends in asking the judge to throw out the first U.S. trial involving the popular arthritis painkiller. Trial is scheduled for next month.
The motion says Cheryl Rogers of Talladega “has given demonstrably false evidence under oath and committed a fraud on both Merck and the court” in written briefs and depositions about events surrounding the death of her husband, Howard Bradley Rogers, a television technician who volunteered as a paramedic in Anniston.
Merck lawyers said company records prove that the lot numbers on the boxes of Vioxx that Rogers presented as the samples taken by her husband were not on the market until six months after his death.
Pre-trial testimony by the Rogers’ doctor indicated it was unlikely they would have been given the volume of samples Cheryl Rogers said they obtained.
“Merck has in its possession medical records that show Brad Rogers was prescribed Vioxx within a month of his death and separate medical records showing that he had taken Vioxx within two weeks of his death,” said Andy Birchfield of the Beasley Allen law firm in Montgomery, which represents Rogers.
“This is clearly hardball tactics on behalf of Merck,” Birchfield said. “I guess it’s not surprising considering they have set aside nearly $700 million just to defend the case and what they have at stake here, but nonetheless it’s hardball tactics.”
James Fitzpatrick of Hughes, Hubbard and Reed, a New York law firm defending Merck, dismissed the allegations.
“Merck intends to vigorously defend these cases,” Fitzpatrick said. “The facts that we learned, Merck felt it was necessary to bring those to the attention of the court.”
Merck voluntarily recalled the popular arthritis painkiller last September after studies showed it caused elevated risk of strokes and heart attacks. As many as 20 million Americans were prescribed the medication, whose sales tipped $2.5 billion worldwide.
Thousands of Vioxx personal injury cases are expected to go to trial in federal and state courts. Birchfield has been named co-lead counsel for plaintiffs attorneys in litigation that consolidates preliminary matters from all federal court cases nationwide in U.S. District Court in New Orleans.
But even as the court cases proceed, a U.S. Food and Drug Administration panel recommended last week to allow Vioxx sales to resume.
Wilbur Colom, a plaintiffs attorney practicing in Columbus, Miss., who was involved in successful Phen-fen product liability litigation and has several Vioxx cases pending, was interested in the developments of the Clay County case.
“If it’s true, if it’s manufactured after his death, they face a problem,” Colom said.
“The thing about it is Beasley Allen are extremely good lawyers and if they brought that kind of case, that man took the prescription,” Colom said. “This is just not the kind of firm to be involved in some kind of irresponsible allegation like that. You’re talking about a premier firm.”
He said it will be necessary for Beasley Allen to get more information on how Merck identified the batch numbers of the samples in question in the Rogers case. And he questions Merck’s legal tactics.
“Do you think if they had something that ironclad they would wait until the weeks before the trial to bring it up? It sounds to me like they’re just trying to avoid the day of reckoning,” Colom said.
“You can see that’s a very legitimate legal argument, but it totally sidesteps the medical and scientific issues,” John Lehmann, a pharmacologist of Wayne, Pa., said of Merck’s claims about the dates on the Vioxx samples. His company, DrugIntel.com, provides expert testimony at trial.
Lehmann was fired by the French pharmaceutical company Servier after his research showed some of its drugs could cause damage to neurons in the brain. Those drugs were used in the manufacture of the diet pill Phen-fen, which was proven to cause serious health injuries and was subject to massive litigation. He is convinced studies done on Vioxx before it was recalled by Merck proved there were cardiovascular risks but the drugmaker ignored them.
“There’s a nod and a wink between the industry and the FDA” in this case and others, he said.
“It is a real shame that the way that we have to recover from ultimately what is bad regulation of drugs getting on the market is this terrible dogfight between attorneys, because what’s going to court is not at all the medical or scientific merits of the case,” Lehmann said.
In the motion filed Tuesday, Merck lawyers said Cheryl Rogers changed her responses several times to pretrial questions about the sequence of events related to her husband’s use of Vioxx.
Rogers gave different answers at different times about the length of time her husband had taken Vioxx and how many samples were given to him by Dr. William Clancy, according to the motion.
At one point, the motion states, she said additional boxes of Vioxx she was asked to produce for the Merck lawyers to examine were at home in a safe. When she returned a few days later, she said she had placed the boxes in a book bag, which she left in a car in Duluth, Ga., while she was there purchasing a new vehicle. When her old car was returned, she said, the boxes were missing.
In his deposition, Clancy said normal procedure in his office is to note when and how many samples are given to a patient. No such notations existed for Rogers’ husband, according to the Merck motion.
Clancy said his office didn’t keep large volumes of the samples on hand, and doubted that anyone in his office would give 96 sample tablets to Rogers, as his widow claimed, when that was three times the amount written on his prescription.
The motion says Merck has a computerized tracking system to show when its medications go from the factory to a warehouse, and from a warehouse to market. The lot numbers on the boxes that Rogers said were given to her husband were checked through that record-keeping system and it showed those boxes did not leave Merck’s possession until six months after Rogers died, according to the motion.
“This is something solely within Merck’s possession,” Birchfield said of the lot numbers and computerized records, which Beasley Allen lawyers did not learn of until Tuesday.
“We will need to test the accuracy and reliability of these documents. . . beyond that I cannot offer an explanation,” he said. Nor, he said, could he explain the lack of record-keeping at Clancy’s office about the samples that Cheryl Rogers said her husband obtained there.
He said he and other lawyers working the case never had cause to doubt what Rogers’ widow told them.
“The Cheryl Rogers I know certainly is not the same Cheryl Rogers that’s outlined in Merck’s papers,” Birchfield said.
“No matter what allegations they make against an individual plaintiff, it does not take away the fact that the studies have clearly established that this is a deadly drug,” he said.