Opening arguments begin in second federal Vioxx trial

(AP) The second federal plaintiff to claim that the painkiller Vioxx caused a heart attack was a fit retired FBI agent who watched his diet, exercised regularly and was a model patient, his lawyer says.

Gerald Barnett also is the son of a man who died of a heart attack, and had himself been regularly warned after his FBI physicals to get his cholesterol levels down, an attorney for manufacturer Merck & Co. countered.

Barnett, 62, of Myrtle Beach, S.C., is among thousands of plaintiffs claiming that the drug, which was bringing in $2.5 billion a year for Merck at its height, caused a heart attack, and that Merck hid its dangers.

His attorney, Mark Robinson, and Merck outside attorney Phil Beck made their opening arguments Monday. Testimony was scheduled to start Tuesday. The trial is likely to last two to three weeks, U.S. District Judge Eldon Fallon said.

Robinson said that, during his 27 years as an FBI agent, "Jerry always met stringent FBI physical requirements." Even after retirement he worked out daily, running and lifting weights, and kept his diet healthy, Robinson said.

In spite of this, Barnett had a heart attack, followed by a 5-way bypass operation, on Sept. 6, 2002. He was 58 and had taken Vioxx for 31 months. He continued to take it until one week before Merck pulled it from the market in September 2004 because it increased the risk of heart attacks.

Barnett's father's first heart attack was at the age of 55, three years earlier than Barnett's, Beck said. He said the plaque in Barnett's arteries had been gathering for decades.

Robinson also told jurors the doctor who prescribed the painkiller to Barnett in January 2000 was a Merck "thought leader," paid to spread the word among other doctors about what was then a recently approved drug. Another of his doctors was married to a sales representative for the drug, Robinson said.

"Their marketing campaign was not just across the country. It touched Mr. Barnett's case," Robinson said.

According to Robinson, Barnett will testify that he had asked Dr. Michael McCaffrey, whom he saw for osteoarthritis caused by a car accident, for Celebrex _ a similar drug that had been approved earlier.

McCaffrey prescribed was Vioxx, the attorney said.

McCaffrey "signed eight years of contracts to be a Merck thought leader. He was paid by Merck," Robinson said.

He said McCaffrey saw Barnett only four times, but one of his regular doctors, Dr. Michael Mikolajczyk (mik-OH-luh), was married to a Vioxx sales representative and himself received speaker fees from Merck.

He quoted Mikolajczyk as saying that, had he known what he now knows about Vioxx, he would have kept Barnett on his previous painkiller.

He said Mobic, the drug to which Barnett switched after going off Vioxx, and Feldene, the painkiller he took for the 15 years before Vioxx, both had "a big fat ugly warning" about the risk _ the same kind of warning Robinson said Vioxx should have carried.

"It doesn't make sense to say Vioxx did it and ignore Feldene and Mobic," Beck said.

And, he said, though Barnett's attorneys have said they plan to spend days on testimony about Merck's marketing for Vioxx, "these doctors weren't exposed to almost all these marketing materials ... and weren't influenced by them."

McCaffrey and Mikolajczyk are among many witnesses on both sides who will testify through their video depositions.

Merck faces more than 16,000 lawsuits involving Vioxx. Barnett's is the ninth to go to trial. Merck won the first federal suit, brought by the family of a man who died of a heart attack after less than a month on Vioxx.

One state case is still in court. Merck has lost three, brought by one severely incapacitated plaintiff and the families of two people who died, and has won the other four.