Seeking to shelve the first Vioxx suit set for trial, Merck attorney Mike Brock said the medicine that Brad Rogers allegedly took did not even leave the company until after he died in 2001. The claim that Vioxx was a factor in the death is "an impossibility," Brock said.
But lawyers for Rogers' wife, Cheryl, told Circuit Judge John Rochester they had expert medical testimony showing Vioxx caused the death and that Cheryl Rogers and other family members will testify they saw Rogers take Vioxx before he died.
Rochester said he will rule by the end of the week.
The stakes for Merck are high: Analysts estimate the lawsuits could cost the company up to $18 billion if verdicts go against it.
Merck pulled Vioxx off the market last September after a study showed the drug doubled the risk of heart attacks and strokes in patients taking it for more than 18 months. More than 2,400 lawsuits have been filed involving Vioxx, but the Rogers case, with a May 23 trial date in rural Clay County, is the first in line to be heard by a jury.
Merck's dismissal motion contends the Vioxx samples Cheryl Rogers produced as the medicine her husband was taking didn't leave the company until six months after he died. Moreover, the doctor who was treating her husband said he had no record of giving him Vioxx samples.
Cheryl Rogers has said she just got confused and that the samples she gave Merck belonged to her mother, not her husband. She lives next to her parents' home and she and her husband spent most of their free time there, she said.
She explains the lack of a record of her husband receiving Vioxx samples as a clerical error.
In response to Merck's dismissal motion, Rogers' lawyers filed a brief accusing the drug maker of conducting a smear campaign against their client to poison the local jury pool. They allege Merck's actions are just an extension of the company's history of intimidating doctors who questioned Vioxx's safety.
Merck's disclosures about Brad Rogers' health stemmed from a motion it filed accusing Rogers of committing fraud against the court.