Retrial doesn’t mean replay. In the two months between a hung jury in Houston and the second trial for a Florida woman whose husband died after taking the painkiller Vioxx for a month, the evidence and witness lists have changed.
“A products case or chemical case or an explosion case – any complex case like this is dependent on what you discover” – that is, documents and other evidence received from the other side, said Russ Herman, who is acting as spokesman for plaintiff Evelyn Irvin Plunkett. He continued, “When companies hide materials it’s very difficult.”
Videotaped testimony from one of the new witnesses – executive editor of a renowned medical journal which published two studies regularly mentioned in Vioxx litigation – will resume when the retrial enters its second week on Monday before U.S. District Judge Eldon Fallon.
On Friday, jurors heard Dr. Gregory Curfman’s criticism of a study called VIGOR, which the New England Journal of Medicine published in November 2000, but not his thoughts about the study called APPROVe, which prompted manufacturer Merck & Co. to pull the drug from the market four years later.
In a copy of the deposition provided last week to The Associated Press in New York, Curfman’s testimony about APPROVe struck at the heart of Merck’s defense in the death of Richard “Dickie” Irvin and many other case.
Merck contends that Vioxx endangered the heart only after it was taken for at least 18 months, and that it pulled the drug as soon as it realized there was any danger.
In the deposition provided to the AP, Curfman said his journal turned back the original draft, calling for the authors to tone down the 18-month claim. The article published in February 2004 included it, but with a phrase which Curfman said he added to indicate it was a hypothesis.
Fallon has asked attorneys not to talk to reporters. An outside attorney for Merck noted that the article’s authors worked with Journal editors to address their concerns, and that the FDA has said publicly that short-term use of Vioxx doesn’t cause problems.
Plunkett says that taking Vioxx for a month caused the heart attack that killed her husband, and that Merck concealed the drug’s dangers.
Merck’s attorneys say the heart attack was caused by a 30-year buildup of plaque and other factors, including lack of aerobic exercise and a less than healthy diet.
They also say Merck hid nothing about any risks, and notified the U.S. Food and Drug Administration as soon as it learned about the results of VIGOR and APPROVe.
Although Curfman, a cardiologist, was questioned by Plunkett’s attorneys about a week before the trial in Houston, his testimony could not be used then because Merck’s attorneys had not been able to question him.
On the day deliberations began in Houston, the journal’s online edition published an editorial by Curfman, another editor and another physician criticizing VIGOR’s authors for withholding data and jumping to an unwarranted conclusion about data it did report.
Curfman has said it was based on evidence shown to him during the Nov. 21 deposition, according to a journal spokeswoman.
In testimony played Friday, Curfman said a company memo from July 5, 2000, included data which should have been but was not included in the VIGOR article – detailed information about the numbers of heart attacks, strokes and other “cardiovascular events. ”
“I certainly would have wanted to have access to those data. Absolutely,” Curfman said.
Merck spokesman Kent Jarrell repeated outside court that the information was not deleted, but was – at the request of journal editors – moved from a table into the body of the article. Information in the text is usually less detailed than that in tables, he said.
Curfman testified that the detailed figures were deleted before the article was ever submitted. He found reference to the deleted table on a computer diskette the journal had not looked at before Vioxx was withdrawn in September 2004, he said.