NEW YORK (AP)- the first slated trial of a wrongful death suit against Merck & Co. over its painkiller Vioxx has been postponed at the urging of a federal judge.

Paul Sizemore, a plaintiff’s lawyer in the Alabama case that was set for May 23, said U.S. District Judge Eldon E. Fallon asked his firm to postpone the case so it wouldn’t interfere with federal litigation. Sizemore’s firm and Merck & Co. complied.

Fallon is overseeing gall the federal Vioxx cases, Although the Alabama trial is a state case, Sizemore said his firm complied out of respect for the judge. Moreover, his firm is represented on a federal plaintiff steering committee said he said it would have been awkward to refuse his request.

“We have mixed feelings,” said Sizemore, a partner at Beasley, Allen, Crow, Methvin, Portis & Miles in Montgomery, Ala. “We want to push our case forward. We think we have a meritorious case.”

However, Sizemore added, “We need to work with the Judge.”

Sizemore said it was unclear when the trial might go forward but that the Circuit Judge John Rochester might set a new date when he rules on a motion by Merck to dismiss to case. Rochester said he would rule on Merck’s motion by the end of the week.

The second state case is slated to begin on May 31 in Angleton, Texas, and it was unclear if that case would also be postponed

Mark Lanier, the plaintiff lawyer in the Texas case, said Judge Fallon hasn’t called him but he’d heard from other lawyers that he would be asked to postpone his case. Lanier said the decision would rest with his client, who lost her 59-year old husband in 2001.

“She lost income when her husband died,” said Lanier. “There is also a lot of emotion wrapped up in this.

Lanier said he respected Fallon but added that the judge “needs to understand that there are other cases out there without considerations.”

April 29, 2005

Federal Judge Postpones Alabama Vioxx Case

By: Troy Goodman

The Birmingham News

The nation’s first wrongful-death lawsuit due to go to trial regarding Merck & Co.’s painkiller Vioxx has been postponed for more than seven months, attorneys for both sides said Thursday.

Montgomery attorney, Jere Beasley, who represents the plaintiff in Alabama case, said a federal judge requested the delay so they state would not interfere with federal cases. Beasley and attorneys for Merck said they agreed to the request.

Clay County Circuit Judge John Rochester, who was slated to hear the case starting May 23, in Ashland is expected to rule in favor of the continuance requested buy U.S. District Judge Eldon Fallon, attorneys working on the case said.

“The judge wants it continued till January so as not to prejudice either side,” Beasley said. Beasley represents Cheryl Rogers of Talladega, who filed the suit two years ago alleging Vioxx contributed to the September 2001 death of her husband Brad Rogers.

Hundred of individual and class-action suits filed in federal courts against Merck are being consolidated in Fallon’s federal court in New Orleans through a time-and cost-saving procedure known as “multi-district litigation,” MDL.

Merck attorney Mike Brock said in a statement he agreed to postponing the Alabama case out of respect for Fallon, even though the Rogers case is under the state jurisdiction and will likely remain in Clay County. Brock’s statement said the Alabama continuance was key to the MDL proceeding because it was “eliminate duplicate discovery, avoid inconsistent pretrial rulings, and address issues involving medical causation and qualification of experts.

More than 2,400 lawsuits were filed after Merck pulled Vioxx from pharmacies last fall in the wake of new research that showed the drug led to cardiovascular problems.

In the Alabama cases, Brock appeared before Rochester on Tuesday and asked him to dismiss Rogers’ lawsuit on grounds she presented no credible evidence that her husband took Vioxx before his death. Merck said the Vioxx bottles that Rogers produced as evidence her husband took the drug were shipped to sales representatives six months after his death,. Rogers said her husband had been given samples of the drug.

Beasley argued the case should go forward because Rogers did take Vioxx, and that Cheryl Rogers was confused about the samples because her mother also took the painkiller.

Brad Rogers’ body was exhumed in February for an autopsy, which showed that “Vioxx killed him,” Beasley said.

Before the federal judge’s request for a continuance was released to reporters Wednesday, Rochester said Tuesday he would rule on Merck’s motion to dismiss the Rogers case by the end of the week

Rogers’ widow told Beasley she was slightly disappointed Thursday to heat her case had been postponed, although she agreed it was good to follow the federal judge’s request. “She just wants her day in court,” Beasley said. News staff writer Stan Bailey contributed to this report.

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