Parties agree to delay Alabama Vioxx case

NEW YORK — 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, based in New Orleans, is overseeing all the federal Vioxx cases. Although the Alabama trial is a state case, Sizemore said his firm complied out of respect for the judge. Moreover, Sizemore noted that his partner, Andy Birchfield, is co-lead counsel on a federal plaintiff steering committee so it would have been awkward to refuse the judge’s 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.”

Merck, which is based in Whitehouse Station, N.J., 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. So far, more than 2,400 lawsuits have been filed involving Vioxx.

The first cases are considered very important because all the documents gathered during discovery are finally made public and verdicts are rendered. Big wins for the plaintiffs can act as a magnet for more clients and can push Merck to settle cases. But Merck victories can cause plaintiffs to rethink their cases and limit damages.

Early trials begin to gauge Merck’s liability, which analysts have estimated could reach $18 billion.

Earlier this year, Fallon was selected to handle all pretrial proceedings such as gathering evidence in the federal cases. Once that is over, the cases are returned to their original jurisdictions.

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 the 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 hadn’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.”