First Federal Trial Over Merck’s Vioxx to Begin

In April 2001, Richard “Dicky� Irvin was among millions of people who found relief from nagging pain in Vioxx, then a popular painkiller often praised as a wonder drug that worked when others failed.

But back-pain relief was fleeting for the 53-year-old manager of a wholesale seafood distributor in St. Augustine, Fla. In May that year he went to work and told his boss he didn’t feel well. A little later his co-workers found him dead at his desk.

Whether Merck & Co.’s once-lucrative drug led to his death lies at the center of the third Vioxx-related case in the nation to face a jury, and the first to do so in federal court.

“It’s going to be interesting. Merck is pretty cocky, which is fine,� said Jere Beasley, a former Alabama lieutenant governor who will lead his Montgomery, Ala., law firm’s team representing Irvin’s widow, Evelyn Irvin Plunkett.

Merck enters its third court battle with a split record in state courts -- a loss in Texas and a win in New Jersey. The federal face-off, to begin Tuesday with jury selection and opening statements, will be in Houston rather than its original venue of New Orleans because of damage wrought by Hurricane Katrina.

Merck, based in Whitehouse Station, N.J., pulled Vioxx from the market in September 2004 after a long-term study showed that the drug doubled the risk of heart attack or stroke if taken for 18 months or longer. By then, more than 20 million Americans had used Vioxx.

The company faces about 7,000 state and federal lawsuits.

The Texas jury in August found Merck liable for the death of 59-year-old marathon runner Robert Ernst and awarded his widow $253.4 million in damages. The amount will fall to no more than $26.1 million under Texas caps on punitive damages, and Merck will appeal.

This month the New Jersey jury absolved Merck of liability and left the plaintiff -- 60-year-old Frederick “Mike� Humeston of Idaho, who survived what he claimed was a Vioxx-induced heart attack -- with nothing.

Any damages awarded if Plunkett wins will be governed by Florida law because the lawsuit was filed in Florida before it and all other federal Vioxx litigation came under the watch of U.S. District Judge Eldon Fallon of New Orleans to streamline trial preparations.

Merck lawyers declined to discuss the case, citing Fallon’s request that lawyers refrain from public comment until a verdict was reached. The company’s court filings indicate that Merck’s defense will center on whether Vioxx could be responsible for Irvin’s death when he took the painkiller for such a short time. Ernst took Vioxx for eight months. Humeston took it intermittently for two months. Irvin took the drug for about a month.

The trial will be the first of four overseen by Fallon. The next cases are slated to be heard in February, March and April; the specific cases have yet to be selected. Fallon told attorneys last month that when the fourth trial concluded, he would meet with them to explore a global settlement for all federal Vioxx litigation.

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The Week Ahead

Today

* The National Assn. of Realtors reports on existing-home sales for October.

Tuesday

* The Commerce Department reports on durable-goods orders and new-home sales for October.

* The Conference Board reports its consumer confidence index for October.

* The U.S. Senate Commerce, Science and Transportation Committee holds a hearing on media decency, with representatives from cable, broadcasting and other content industries.

* Quarterly earnings report expected from TiVo Inc.

Wednesday

* The Commerce Department reports on gross domestic product for the third quarter.

Thursday

* The Commerce Department reports on personal income and spending and construction spending for October.

* The Institute for Supply Management issues its report on manufacturing activity for November.

* The nation’s largest retailers announce their sales figures for November.

* Automakers release their sales figures for November.

* Quarterly earnings report expected from Warner Music Group Corp.

Friday

* The Labor Department reports on employment for November.