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Angleton, Texas-Carol Ernst heard her husband’s last raspy breaths on a pillow next to hers as he lay dying. She thinks she knows why his heart was giving up. Attorneys for Merck & Co. say it wasn’t the Vioxx he took. A jury of five women and seven men have been seated near this Texas Gulf Coast town to decide the nation’s first Vioxx-related wrongful death lawsuit to go to trial. Opening statements were expected last week from lawyers representing Merck and those for Ernst, who alleges that the drug caused her 59-year-old husband to die unexpectedly in his sleep more than four years ago. The case is the first of more than 3,800 state and federal lawsuits pending against Whitehouse Station, N.J.-based Merck over the painkiller the company pulled from the market in September 2004 because a study showed it could double the risk of heart attack or stroke. Merck claims the company responsibly researched Vioxx’s safety in numerous clinical trials before the U.S. Food and Drug Administration approved it and monitored the drug after it went on the market in 1999. Mark Lanier, the lead lawyer for Ernst, is among thousands of plaintiffs’ lawyers who claim the opposite: Merck downplayed earlier studies that showed Vioxx could be dangerous in favor of profits. Ernst’s husband, Robert, died of an arrhythmia, or irregular heartbeat, in 2001 after taking Vioxx for about eight months to ease pain in his hands. Merck aims to focus on science, arguing that no studies link Vioxx to arrhythmia. Lanier’s team says Robert Ernst’s sudden death left little time to show heart damage. Two doctors bounced Both sides chose the jury panel and two alternates from a pool of about 90 potential jurors last Wednesday. Among potential jurors not chosen were two doctors who had prescribed Vioxx, a man whose grandfather had a heart attack after taking Vioxx for four years, and a woman who had taken Vioxx before it was pulled from the market. When Merck lawyer Gerry Lowry asked whether anyone believed Vioxx was unsafe because it was pulled from the market, more than a third of the group raised their hands. Then nearly all agreed it was possible for a company to release a drug believed to be safe and learn about possible safety issues later. The trial is expected to last five weeks. About 20 million people took the anti-inflammatory drug prescribed for arthritis and acute pain since it came on the market. In 2000, a study found that some Vioxx users suffered five times as many heart attacks as users of the older painkiller naproxen.

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