More than a month away from going to trial in eastern Alabama over its discontinued painkiller, Vioxx, Merck & Co. has asked a Clay County judge to dismiss the case.

The pharmaceutical giant says the widow of a heart-attack victim had given inconsistent information about when her husband took his prescription and how he acquired samples of Vioxx.

But Jere Beasley, the victims attorney, said the company’s claims “are unfounded and a desperate attempt to avoid a day in court for a victim’s family.

“My message to Merck is pretty simple- I will see them in Clay County,” he said.

The lawsuit, the nation’s first case to be tried against Vioxx, claims Brad Rogers of Ashland had taken the drug before his Sept. 4, 2001, death from a heart attack. The 42-year-old ambulance dispatcher’s widow, Cheryl Rogers, filed the personal injury lawsuit in 2003, contending the painkiller led to his death.

Merck pulled Vioxx from pharmacy shelves on Sept. 30, 2003, after the company’s research raised new questions about whether the drug led to cardiovascular problems. Since then, regulators have cast renewed scrutiny on an entire class of so-called super painkillers, including Bextra and Celebrex.

In the Alabama case, Brad Rogers was prescribed Vioxx for shoulder pain a month before his death, but he never filled the prescription and instead opted to take samples of the drug his doctor had given him, medical records show. Beasley said the short period of time Rogers took the samples was enough to trigger his heart attack. He said client, Cheryl Rogers, was not available for comment.

Last week, attorneys for Merck filed a motion in the Alabama case saying it should be thrown out because Cheryl Rogers had not given consistent information about the sample bottles used by her husband. A hearing on the motion could be held April 26, according to a clerk in Circuit Judge John Rochester’s office. Rochester is scheduled to hear the case on May 23.

Merck said Cheryl Rogers at first provided one 32-pill sample bottle, which, because it was unopened, could not have been used by her husband. Upon further questioning, Merck lawyers said Cheryl Rogers changed her story, claiming her husband had been given a total of three sample bottles.

When a second bottle was brought to attorneys with about 20 pills missing, Cheryl Rogers said in a deposition that a third full bottle had been stolen after she moved it from her home to a book bag in her car, the motion says.

Merck said it checked with its national pharmaceutical tracking system and determined the lot numbers on the samples proved they could not have been dispensed to Brad Rogers. The samples were shipped to sales representatives in March 2002, six months after his death, Merck said.

Beasley would not talk about Merck’s lot numbers. Instead, he said his client had told the truth and turned over the used and unused portion of her husband’s Vioxx samples as requested. He said his firm had medical records to show Brad Rogers was taking Vioxx at the time of his heart attack and that autopsy results proved the drug caused his death.

Beasley, a senior partner in the Montgomery-based firm Beasley, Allen, Crow, Methvin, Portis & Miles, said Merck’s request for dismissal is an obvious legal tactic to score a symbolic victory. “They are obviously trying to undermine this case to impact other cases that follow,” he said.

Merck’s Jim Fitzpatrick, an outside attorney working on the case, said tracking the sample lot numbers and asking about patient doses is all part of figuring out whether anyone was potentially harmed by the drug.

“This is part of a very thorough investigation that we intend to do with all of these cases,” he said

As of March 9, the company said there were more than 1,350 Vioxx-related lawsuits pending. The Rogers case seeks damages but does not specify an amount.

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