Merck Asks for a Dismissal in First of Suits Over Vioxx

By ALEX BERENSON

Published: April 13, 2005

erck asked yesterday for the dismissal of the first Vioxx personal injury lawsuit scheduled to come to trial, contending that a man who died of a heart attack after being prescribed Vioxx never took the drug. The pharmaceutical company says that the man's widow has repeatedly lied and produced false evidence.

The suit, which is scheduled to be heard in an Alabama court on May 23, is one of thousands of claims that have been brought against the company by people who say that Vioxx, a painkiller, caused them to have heart attacks or strokes. Still, a win by Merck would give the company an important psychological victory in the first of a series of suits that could determine its future.

The Rogers suit, and several others expected to begin later this year, will be watched closely by lawyers and investors. For Merck, the stakes of the Vioxx suits can hardly be overstated. If juries turn against the company, Merck could be forced to pay $15 billion or more to settle Vioxx-related claims, analysts say.

The suit that Merck is seeking to dismiss was filed in August 2003 in Ashland, Ala., a rural town of 2,500 about 75 miles east of Birmingham, by Cheryl Rogers, the widow of Howard B. Rogers. The suit contends that Mr. Rogers, a 42-year-old ambulance dispatcher, died from a heart attack on Sept. 4, 2001, after taking Vioxx for shoulder pain.

But lawyers for Merck said yesterday that the suit should be thrown out because the company could prove that it had not distributed until early 2002, several months after Mr. Rogers died, the Vioxx that the plaintiff contends Mr. Rogers took. As a result, Mr. Rogers could not have taken the Vioxx that supposedly caused his heart attack, the company said.

A hearing on Merck's motion may be held on April 26, according to a clerk for John A. Rochester, an Alabama circuit court judge who is overseeing the case. Shares of Merck, based in Whitehouse Junction, N.J., rose 67 cents, or 2 percent, to $33.81 yesterday. The company filed its request after the close of trading yesterday on the New York Stock Exchange.

Lawyers for Beasley, Allen, Crow, Methvin, Portis & Miles, the Montgomery, Ala., firm that represents Ms. Rogers, disputed Merck's claims and said that they had evidence that Mr. Rogers took Vioxx before he died.

A dismissal of the case would be a major embarrassment for Beasley, Allen, which is among the most important firms in the Vioxx litigation, with thousands of clients who are suing or thinking of suing Merck.

Merck said Ms. Rogers had repeatedly lied under oath when she was questioned in a deposition by lawyers for the company. Merck's filing depicts an increasingly comical series of implausible statements by Ms. Rogers as she struggled to prove her claim that her husband took Vioxx in the month before he died.

"Putting aside the question of whether the plaintiff has committed fraud, it is plain that plaintiff at minimum asserts an impossibility," the Merck filing said. "Merck is therefore entitled to summary judgment."

Jere L. Beasley, the managing partner for Beasley, Allen, said that Ms. Rogers had not lied. Mr. Beasley also said that Ms. Rogers was not available for comment.

Beasley, Allen also provided a report from a doctor who saw Mr. Rogers 11 days before he died. In the report, Mr. Rogers said that he took Vioxx about once a week - not every day, as Ms. Rogers claimed.

"If they think the woman's lying, let them prove it in the courthouse," Mr. Beasley said. "Folks said he took Vioxx, and that's about the end of it, as far as I'm concerned."

But according to Merck's filing, Ms. Rogers initially said that her husband "took Vioxx for a long time on a very regular basis." When Merck's lawyers pressed her for details, she said that he had visited a doctor on Aug. 10, 2001, 25 days before he died, and received a prescription for Vioxx. But the prescription was never filled, according to Merck. Instead, Ms. Rogers said that her husband had taken samples of Vioxx he received from his doctor in the month before he died. She said she stood next to him when he received the samples.

At a deposition last January, Ms. Rogers offered an unopened pack of 32 Vioxx sample pills to back her claim. Merck's lawyers then contended that because the pack was not opened, Mr. Rogers could not have taken the sample pills in it.

Ms. Rogers then changed her story, according to Merck's filing yesterday. She claimed that her husband had been given three sample packs, totaling 96 pills. He had taken about 20 pills before he died, she said. She also said she had kept the rest in her safe. Later, she provided Merck with about 12 pills from a second sample pack of 32. She claimed the third pack had been stolen after she moved it from her safe to a book bag in her car, though she acknowledged that she had never filed a police report for the theft.

Suspicious of Ms. Rogers's story, Merck checked the samples, which federal rules require be closely tracked. The company said its records showed that the samples did not arrive at its distribution warehouse until March 2002, six months after Mr. Rogers died.

Dr. William Clancy, the doctor who treated Mr. Rogers, also contradicted Ms. Rogers's story, saying that he usually gave out only two to five days' worth of Vioxx.

The company concluded its filing by asking the judge to dismiss the suit with prejudice, a legal term that means it cannot be refiled.