Giant drugmaker Merck & Co. has vowed to fight every one of the thousands of personal injury cases filed against it after the Vioxx withdrawal, starting with the case of Brad Rogers, 42, an ambulance dispatcher in Alabama. 

Merck came out swinging, its lawyers calling Rogers’ widow, Cheryl, 33, a liar. At a pre-trial deposition, she presented packages of Vioxx that she said her husband had used just before his death from a heart attack.

But Merck’s lawyers said the packages in question left the Merck factory six months after Rogers died. Rogers’ lawyers shot back that it was an unintentional error and then filed a motion seeking sanctions against Merck for violating a protective order and disclosing personal and confidential information about Mrs. Rogers and her husband.

In addition, the motion cites Merck being in violation of the provisions of the federal health privacy act, HIPAA, by disclosing personal medical information pertaining to Brad Rogers.

Vioxx was withdrawn from the market last September after studies suggested it doubled the risk of heart attack and stroke in those who took the drug for more than 18 months.

Merck has set aside $675 million to fight the roughly 2,500 cases that have been filed. Its defense strategy, as illustrated in the Rogers case, is to question whether Vioxx was actually to blame for the deaths and illnesses claimed by the plaintiffs, or whether other factors, including lifestyle, heredity, diet and smoking may have been significant.

Rogers collapsed and died shortly after finishing a night shift. He was overweight and had high blood pressure and high cholesterol, which is why his lawyers say he shouldn’t have been taking Vioxx.

Attorney Jere Beasley, representing Mrs. Rogers, asked that since Merck allegedly violated the protective order by releasing information about the Rogers couple to the press, the court vacate its protective order as it relates to documents produced by Merck. He is asking the court to allow for public disclosure by plaintiffs’ attorneys of all Merck documents.

“Releasing Merck’s documents would serve the public interest by exposing its wrongful conduct over the years,” Beasley said. “Clinical tests have proven Vioxx is and was a dangerous drug. It has killed literally thousands of unsuspecting victims who trusted the company and who had no idea that Vioxx caused heart attacks and strokes.”

During the Advantage trial in 2000, eight people taking Vioxx suffered heart attacks or sudden cardiac death, compared with just one taking naproxen, according to data released by the FDA earlier this year, Beasley said.

The difference was statistically significant, but Merck never disclosed the data that way. In fact, according to previously undisclosed Merck records, including email messages between top Merck officials, it appears that Merck went out of its way to hide these facts, Beasley said in a news release.

In 2000, amid rising concerns that its painkiller Vioxx posed heart risks, Merck overruled one of its own scientists after he suggested that a patient in a clinical trial had probably died of a heart attack, he said.

“Merck intentionally misled the public and the medical community by withholding information relating to known dangers associated with taking Vioxx,” Beasley says.

Merck argues that Mrs. Rogers’ credibility has been damaged and moved for a dismissal of the case.



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