Merck asks judge to throw out wrongful death suit

ASHLAND, Ala. — Lawyers for Merck & Co. asked a judge Tuesday to throw out a wrongful death lawsuit, contending the woman who said the pain reliever Vioxx caused her husband’s death lied and committed fraud against the court.

Seeking to shelve the first Vioxx suit set for trial, Merck attorney Mike Brock said the medicine Cheryl Rogers claimed her husband, Brad, took did not even leave the company until six months after he died.

“Mrs. Rogers has asserted an impossibility,” Brock said.

But Rogers’ lawyers told Circuit Judge John Rochester they had expert medical testimony stating that Vioxx caused the death and that Cheryl Rogers and other family members will testify they saw her husband take Vioxx before he died.

“There is no question he was taking Vioxx,” said Jere Beasley, Rogers’ lawyer.

Rochester said he will rule by the end of the week. He did not address other motions in the case, but did reiterate that a protective order keeps documents gathered during trial preparations confidential.

Merck pulled Vioxx off the market last September after a study showed it doubled the risk of heart attacks and strokes in patients taking the drug for more than 18 months. More than 2,400 lawsuits have been filed involving Vioxx. The Rogers case is first in line for a jury to hear.

Cheryl Rogers said that in August 2001 a doctor gave her 42-year-old husband Vioxx samples and he was taking them before he died the following month. But Merck said the sample boxes Rogers provided to the lawyers didn’t leave the company until six months after her husband died.

Brock also noted in court that the doctor has no record of giving Brad Rogers any samples, and the 96 pills his widow said were received exceeded the amount the physician typically offered.

But during the hearing, the judge commented to Brock that the Rogers’ lawyers might be able to establish through other means that her husband took Vioxx.

“I can’t judge the facts of the case,” Rochester said.