First Vioxx Suit Postponed

The first scheduled 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 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, his firm is represented on a federal plaintiff steering committee so he said it would have been awkward to refuse his 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."

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."