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Federal Judge Orders Third Trial in Case Against Merck

A federal judge has ordered a third trial in a lawsuit by a woman who blamed Merck's painkiller Vioxx for the heart attack that killed her husband.

A cardiologist who testified for Merck misrepresented his qualifications in the second trial last year, U.S. District Judge Eldon Fallon ruled.

Jurors in that trial ruled in favor of Merck and against Evelyn Irvin Plunkett, whose first husband, Richard "Dickie" Irvin, died of a heart attack after taking Vioxx for less than a month.

Lawyers learned about the ruling Wednesday. It and another Vioxx ruling had been signed Tuesday but were made available on the Internet a day later; a third was sealed but referred to in a joint report by attorneys for both sides dated Wednesday.

The sealed order turned down a retrial request from Anthony Wayne Dedrick, a Tennessee man whose damage claims were rejected by jurors, Merck attorney Ted Mayer said.

The other ruling said Merck may keep and use the detailed outline of federal litigation strategy put together by plaintiffs' attorneys and turned over to Merck's attorneys by mistake.

The plan was put together by the Plaintiffs' Steering Committee, created to represent everyone with a case before Fallon, who is handling pretrial matters for all federal Vioxx claims.

He has tried five cases in hopes of working out a settlement for the rest. Merck has said repeatedly that it wants to try each case on its own.

Merck's Lawsuits

As of March 31, Merck knew of 27,250 lawsuits alleging 45,700 incidences of personal injury or loss due to Vioxx, including 266 filed as possible class actions, according to the attorneys' report.

It said 8,400 of those suits, representing about 23,450 people who took Vioxx or their representatives, either were in Fallon's court or being sent there. Another 16,550 lawsuits are in state court in New Jersey.

Plunkett's first trial -- also the first federal Vioxx trial -- was held in Houston during November and December 2005 because Hurricane Katrina had devastated New Orleans that August, and it ended with a hung jury -- deadlocked 8-1 in Merck's favor, two jurors told The Associated Press.

The cardiologist, Dr. Barry Rayburn -- a professor of medicine at the University of Alabama-Birmingham hired by Merck as a $600-an-hour expert witness -- testified in Plunkett's second trial that the drug could not have caused Irvin's heart attack.

When he was brought to the stand, he was asked whether he was board-certified. His answer was, "Yes, I passed boards in internal medicine and in cardiovascular disease."

However, the next time Merck brought him as a witness in a Vioxx trial -- a state court case in New Jersey -- he testified during cross-examination that his board certification had lapsed.

"Not only does Dr. Rayburn's misrepresentation call into question the Court's acceptance of him as an expert witness, it also sheds an unfavorable light upon his propensity for truthfulness," Fallon wrote. "Moreover, the misrepresentation prevented the Plaintiff from cross-examining the witness about his failure to maintain his certifications and the importance of such certifications. These matters are not trivial, especially in this litigation where experts often disagree on critical issues such as causation."

Plunkett's attorney, Andy Birchfield, said during an April hearing about whether Plunkett should get a third trial that Rayburn's board certification had lapsed before February 2006, when her second trial was heard.

A statement from Birchfield's law firm quoted him as saying that Fallon's ruling "should serve notice to Merck that proffering the opinion testimony of an expert who lies about his or her credentials is a very serious matter for which there are serious consequences. The court's decision to grant a new trial eliminates the unfair advantage gained by Merck through the duplicity of its expert.

"We are pleased for the Irvin family and consider it an honor as a firm to represent them in a third trial."

The Ruling

The ruling will not affect any other cases because Rayburn passed the board examinations for recertification last year and had testified in only those two cases, said Ted Mayer, an attorney for Merck. He is considered certified as of October 2006, when he took the test, said Kent Jarrell, a spokesman for Merck's Vioxx cases.

"Twice before, plaintiffs have tried to persuade a jury that Merck had something to do with Mr. Irvin's event. And we'll be ready to demonstrate a third time that Vioxx was not involved in his event, that he had abundant other risk factors which explain his death."

The plaintiffs' strategy outline and agenda that Merck will be able to use discusses the various scientific issues in Vioxx cases, notes which attorneys are working for each topic, and discusses their respective objectives with potential witnesses, Fallon's ruling said.

He said those documents were given to Scientific Evidence, an expert witness consulting and brokerage firm hired by the plaintiffs. The firm turned them over to two expert witnesses. When Merck asked for those witnesses' reports and for copies of the material they had considered, Scientific Evidence included the strategy outline -- which had "Confidential Attorney Work Product" watermarked on every page -- among those materials.

The plaintiffs' plan would ordinarily meet standards for confidentiality and was provided by mistake, Fallon wrote.

But, he wrote, Merck has had the material for nearly a year -- and the protection usually given to lawyers' work papers doesn't apply to documents given to testifying experts. "The overriding issue of fairness overwhelms and outweighs" the reasons for secrecy, he wrote.

"Merck is under no obligation to return or destroy copies of the Agenda," he wrote. "However, this does not mean that Merck may use the document to cross-examine any given witness." He wrote that it "cannot be used to cross-examine witnesses to whom the document was not disclosed and who are not otherwise familiar with its contents."

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