Whether the once-popular painkiller Vioxx can be lethal if taken for just a few weeks will be the crux of the first federal trial concerning the drug’s safety, plaintiff’s lawyers said Wednesday.
Jere Beasley and Andy Birchfield, the Montgomery, Ala., lawyers representing the widow of a man who had a fatal heart attack a month after taking Vioxx, said they intend to skewer Vioxx-maker Merck & Co.’s contention that the drug can’t cause heart hazards unless taken for 1 1/2 years or more.
“The 18-month myth is something Merck has manufactured to avoid liability,” Birchfield said.
Merck’s lead lawyer, Phil Beck of Chicago, cited a request from U.S. District Judge Eldon Fallon to decline comment on the case until it concludes.
Fallon did not issue a written gag order. On Tuesday, the second day of a hearing in New Orleans regarding pretrial matters, he asked lawyers not to discuss the case with the media. Beasley said the request wouldn’t take effect until the trial begins with jury selection and opening statements in Houston on Nov. 29, while Merck’s legal team complied immediately.
“We will respect the judge’s wishes and will not have any comment about the substance of the trial until the jury does return a verdict or the judge instructs us otherwise,” Beck said Wednesday.
Merck faces about 7,000 state and federal Vioxx lawsuits. Analysts say Merck could pay billions over the drug through jury verdicts, settlements and legal costs.
Fallon oversees pre-trial matters in the 1,800 federal cases. The first of four federal Vioxx trials was moved to Houston after Hurricane Katrina ravaged its original venue of New Orleans.
Whitehouse Station, N.J.-based Merck pulled Vioxx from the market in September 2004 when a study showed the painkiller could double risk of heart attack or stroke if taken for 18 months or longer. The company says no studies show that risk if taken for shorter spans.
Beasley and Birchfield aim to show a jury some of Merck’s own studies among 58 clinical trials conducted before Vioxx went on the market in 1999 that revealed increases in heart attacks or other cardiovascular problems after a few weeks’ use.
Similar evidence was presented in the first two state trials involving Vioxx in Texas and Merck’s home state of New Jersey.
The Texas jury in August hit Merck with a $253 million verdict, which will fall to no more than $26.1 million under Texas caps on punitive damages. Merck won the New Jersey case earlier this month.
The first federal case involves the May 2001 death of Richard “Dicky” Irvin, a 53-year-old manager of a wholesale seafood distributor in St. Augustine, Fla. He got a prescription for Vioxx from his son-in-law, an emergency room doctor, to alleviate back pain and had a fatal heart attack about a month later.
His wife, Evelyn Irvin Plunkett, contends the drug caused a blood clot to form in one of his coronary arteries, leading to the heart attack. She also alleges that Merck knew years before Vioxx went on the market that the drug could be dangerous but downplayed those concerns to profit from the $2.5 billion seller.
Merck claims in court papers that Vioxx couldn’t be responsible for Irvin’s death because he took the drug for such a short time. The company also says it believed Vioxx to be safe until the 2004 study prompted the drug’s withdrawal.
Birchfield said plaintiffs expect Merck to focus on Irvin’s autopsy, which notes he had moderate to severe clogged arteries. Birchfield said one of those coronary arteries, near where the clot was found, was 60 percent blocked.