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An Alabama judge plans to decide this week whether to dismiss what is slated to be the first Vioxx wrongful death case. On Tuesday, lawyers for Merck & Co. of Whitehouse Station, N.J., Vioxx’s maker, asked Circuit Judge John Rochester to throw out the case of an Alabama woman who said the drug caused her husband’s death because she lied. Merck attorney Mike Brock told the judge that the medicine Cheryl Rogers claimed her husband, Brad, took did not even leave the company until six months after he died. Rogers case is slated for trail on May 23 and would be the first of what are expected to be thousands of cases. “Mrs. Rogers has asserted an impossibility,” Brock said. But Rogers’ lawyers claimed 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 would rule on Merck’s motion later in the week, but reiterated that a protective order keeps documents gathered during trial preparations confidential, but no other motions were discussed. 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. 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. Brock also questioned the validity of affidavits and depositions of family members who said they saw Brad Rogers taking Vioxx. Brock said Cheryl Rogers has given “fraudulent testimony” and urged Rochester to be “the gatekeeper” against the kind of flawed evidence presented in the lawsuit. 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. Beasley argued that Merck’s motion was just a smear tactic against his client that was part of a company pattern to stifle those who spoke out about Vioxx’s side effects. “Merck has a history of intimidation and abusing the system,” Beasley said. Beasley mentioned one doctor Merck had been accused of intimidating and noted how a Stanford University medical professor had admonished the company for attacking investigators or speakers who expressed critical opinions of Vioxx. Beasley also noted that Merck taught its sales representatives how to dodge doctors’ question about Vioxx’s side effects as it was spending millions to promote the drug to consumers. Such assertions, Brock said, were merely a smoke screen designed to direct the court’s attention away from the fact that Rogers’ lawyers had not been able to address where Brad Rogers got his Vioxx and how his widow obtained the samples given to Merck. In an interview Monday with The Associated Press, Rogers said she just got confused and the samples she gave Merck belonged to her mother, not her husband. She lives in a trailer beside her parents’ home and she and her husband spent most of their free time there, she said. She blamed a “clerical error” for the lack of a record of her husband receiving the Vioxx samples, and denied committing fraud. Copyright 2005 Associated Press. All Rights Reserved. This material may not be published, broadcast, rewritten, or redistributed.

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