updated 1/18/2006 4:43:49 PM ET 2006-01-18T21:43:49

A current editor and former editor of the New England Journal of Medicine, which last month criticized drug maker Merck & Co. for withholding data from a published study on its withdrawn painkiller Vioxx, will be grilled next week by the company’s lawyers.

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The depositions, ahead of the next round of product liability trials over Merck’s former blockbuster arthritis pill, will be held next Tuesday and Wednesday, Paul Shaw, an attorney representing the editors, said Wednesday.

The depositions are to center on a December editorial in the journal, one of the world’s most respected medical publications, that said Merck concealed three heart attacks suffered by patients in a large study published in the journal in November 2000. Whitehouse Station, N.J.-based Merck has said those heart attacks happened after the study’s cut-off date for side effects, but journal editors say such data is routinely added until a study’s publication.

The editorial also alleges the study’s authors deleted some relevant data before submitting their article.

“There was no material deleted from the submission to the journal,” but some was moved from a graph into the body of the text, said Kent Jarrell, a spokesman for Merck’s outside counsel.

The 2000 study, known by the acronym VIGOR, has been a key part of Vioxx product liability trials so far, with both sides using it in their arguments over whether Merck promptly disclosed the drug’s cardiac risks. Merck pulled the drug from the market in September 2004 after research showed Vioxx doubled the risk of heart attacks and strokes after 18 months’ use.

Merck has won one state case, in New Jersey, and lost one, in Texas. The first federal case ended in a hung jury last month.

After the journal’s editorial was widely reported, attorneys for Merck subpoenaed multiple NEJM editors and sought information on its “peer reviewers,” independent scientists who critique studies before publication. The editors subpoenaed include editor in chief Dr. Jeffrey M. Drazen and executive editor Dr. Gregory D. Curfman.

“The court should prohibit Merck from engaging in these retaliatory tactics because they run afoul of the protection journalists enjoy under the First Amendment,” Shaw wrote in a motion seeking to block the subpoenas.

On Tuesday, U.S. District Judge Eldon Fallon of New Orleans, who is overseeing thousands of consolidated federal lawsuits over Vioxx, ruled that Merck can depose Curfman but not Drazen.

Curfman said Wednesday that he had been subpoenaed and will comply.

In addition, Merck can depose a second person, a former New England Journal editor involved in handling of the VIGOR study, Shaw said. That person has not been publicly identified, and Shaw would not do so.

Fallon rejected Merck’s bid to get information on the identities of the journal’s peer reviewers.

“He’s protecting the integrity of the peer review process,” said lawyer Chris Seeger, co-lead counsel for the consolidated federal suits. He said the subpoenas continue Merck’s “history of intimidating scientists who question anything on the safety of Vioxx.”

Seeger said information from the two editors’ depositions can be used by both plaintiff and defense lawyers in all future Vioxx cases. Merck faced at least 9,200 lawsuits around the country, including about 4,000 in New Jersey, as of Nov. 30.

“We’re very happy with Judge Fallon’s ruling,” Seeger said, adding he believes the depositions will hurt Merck more than any plaintiffs.

Among the next cases slated for trial is the retrial of the federal case. It is scheduled to begin Feb. 6 in New Orleans.

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