Postponement Sought for First Vioxx Trial

By ALEX BERENSON

erck's day in court has been delayed. In a joint filing yesterday, lawyers for Merck and the widow of a man who died after reportedly taking the Merck drug Vioxx asked a state judge in Alabama to postpone the lawsuit, which was scheduled to be the first Vioxx case to go to trial. Both sides expect the judge to agree to postpone the case, which is scheduled to begin on May 23.

A second trial, scheduled to begin in state court in Texas on May 31, may also be postponed. But W. Mark Lanier, the lawyer for the plaintiff in that case, said he expected the case to be the first to go to trial, in July.

The request in Alabama came after Judge Eldon E. Fallon of Federal District Court in New Orleans, who is overseeing hundreds of federal lawsuits against Merck, asked at a hearing yesterday morning for the postponements of the state cases. Judge Fallon said slowing the state lawsuits would give him better control over the pretrial process, which he is supervising for the federal lawsuits.

Thousands of people have sued Merck, saying they suffered heart attacks and strokes after taking Vioxx, an arthritis reliever and painkiller that Merck introduced in 1999 and stopped selling last year.

Merck has said it plans to defend every case, and has set aside $675 million to cover its legal costs. Paying claims, if any, could cost the company many billions more, analysts say.

The Vioxx cases are in the pretrial discovery phase, an arduous process. During discovery, Merck must provide millions of potentially relevant documents to plaintiffs, while plaintiffs must provide written information about their cases to Merck.

At the same time, lawyers for both sides interview people, under oath, who they think may have relevant information.

To avoid requiring Merck executives and scientists to repeatedly answer the same basic questions about Vioxx, a panel of federal judges decided in February to centralize the federal discovery process under Judge Fallon in New Orleans.

Judge Fallon will also help define the basic questions of law and science that Vioxx jurors will have to answer in all federal cases, and will probably oversee the first federal trials on Vioxx.

After that, other federal cases will be returned to the courts where they were originally filed for trial.

Yesterday, Judge Fallon asked lawyers for both sides to postpone the cases they had filed in state court, people who were present at the hearing said. Through a spokeswoman, Judge Fallon declined comment.

Lawyers for Beasley, Allen, the law firm that represents Cheryl Rogers, the plaintiff in the May 23 case in Alabama, quickly agreed. Earlier this month, Merck asked that the case be dismissed, saying Ms. Rogers had lied and produced false evidence and could not prove that her husband, Howard, who died in 2001, had ever taken Vioxx.

The Alabama judge has not ruled on that motion. But Jere L. Beasley, the managing partner of Beasley, Allen, said Merck's move to dismiss the case played no part in the firm's decision to agree to a postponement. "Our client is agreeable to this," Mr. Beasley said. "Otherwise, we wouldn't have done it."

The Texas case may also be delayed. Mr. Lanier, who represents the widow of Robert Ernst, who died in 2001 after taking Vioxx, said he would agree to a delay of up to six weeks but no longer.

"I'm not willing to put my case on a permanent hold," he said. Mr. Lanier, who is widely considered one of the nation's best trial lawyers, said he looked forward to having the chance to work on the first case to reach jurors.