Merck asks judge to dismiss Vioxx trial

APR. 13 12:31 A.M. ET Accusing the plaintiff in the case of lying, drug company Merck & Co. asked a judge Tuesday to dismiss the first scheduled trial over its now defunct Vioxx pain reliever, which is slated to begin next month.

In a court filing, Merck said Cheryl Rogers, an Alabama woman who filed a wrongful death lawsuit on behalf of her husband, lied in her deposition because the Vioxx pills she claims lead to his death didn't leave the company until six months after he died.

Rogers had claimed in a sworn statement that her husband was taking Vioxx samples provided by Dr. William Clancy in the days before he died, according to the motion filed by the drug company in Clay Count, Ala. But when Merck checked the lot numbers of the remaining samples against its records, the company said it found that those samples did not leave the company's possession until March 2002. Howard Rogers died on Sept. 4, 2001.

The motion also said that Clancy's records don't show that Rogers received any samples.

The plaintiff's lawyer, Andy Birchfield, expressed skepticism about Merck's claim, saying he wanted to see Merck's records. He said medical records prove his client's husband was taking Vioxx.

"This is a hardball tactic, claiming the plaintiff lied under oath. I'm not surprised. Merck has a lot riding on this," he said.

Merck pulled Vioxx off the market last September after it was linked to increased risk of heart attack and strokes. Analysts have estimated the company could pay out between $4 billion and $30 billion in product liability claims. Merck has pledged to defend case vigorously.

"The court should dismiss plaintiff's complaint with prejudice because plaintiff has perpetrated a fraud on both Merck and the court," Merck said in its motion.

Mike Brock, one of Merck's lawyers, said the company has a reliable record keeping system for its samples.

Last week, Birchfield was named co-lead counsel for the plaintiff's steering committee for the federal Vioxx cases. The committee coordinates activities such as gathering evidence and plotting strategy with the other plaintiff attorneys and works with the Judge and Merck's lawyers to move the cases forward.

The Rogers case is slated to begin May 23 in state court in Alabama. It was unclear when the court would rule on Merck's motion.

There were other inconsistencies in Rogers' testimony, the motion said.

Initially, Rogers said the doctor gave her husband eight Vioxx sample boxes, each containing four blister-packed tablets. However, when she gave them to Merck's lawyers it was obvious they were never used because the cellophane wrapping around the boxes was intact.

Then Rogers said that Clancy gave her husband three eight-box sets. She claimed she left one set in a car she sold. But the set which remained in the cellophane as well as three loose boxes came for a group of samples were not shipped to Merck sales representatives until March 2002, Merck said.

Clancy said that residents note when they give patients samples. He said there is no record of Rogers receiving samples, and the amount allegedly dispensed exceeded the typical size. There was a record of a Vioxx prescription but it was never filled, according to the motion.

Analysts have been eagerly anticipating the first trial because plaintiffs will lay out their evidence for proving that Merck knew that Vioxx was dangerous but sold it anyway. Such proof could increase Merck's liability.

Merck has long denied the plaintiff's claim. Merck has said it will be difficult to prove that Vioxx caused individuals' heart attacks or strokes because such problems are not uncommon.

In trading Tuesday, Merck shares rose 67 cents, or 2 percent, to close at $33.81 the New York Stock Exchange. The stock has lost 25 percent of its value since Merck withdrew Vioxx.