updated 1/25/2006 8:41:04 PM ET 2006-01-26T01:41:04

Lawyers for the family of a 71-year-old man who died in 2001 opened their case Wednesday by arguing that his fatal heart attack was a sudden reaction to Merck & Co.’s painkiller Vioxx and not the end result of 23 years of heart disease as Merck lawyers contend.

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The suit was filed against the drug’s maker by relatives of Leonel Garza, of Rio Grande City, who took Vioxx for arm pain.

Joe Escobedo, the Garza family attorney, said in his opening statement that Garza was told after a stress test shortly before he died that he had a less than 2 percent chance of dying of a heart attack within a year.

“Vioxx caused Mr. Garza’s death,” Escobedo said. “Mr. Garza did have (cardiovascular) risk factors but they were under control.”

Escobedo said evidence would show that Merck knew by 2000 to pull the drug because of its cardiovascular risks, but didn’t because it was more concerned about profits than patients. He said evidence would also show that Merck targeted people like Garza with ads featuring the elderly.

The two sides dispute how long Garza took Vioxx. Garza’s family says doctors gave him more than a month’s supply, while Merck contends he only had a week’s worth.

“The evidence to be presented shows that he took it for a month,” Escobedo told The Associated Press. “Merck knows that, but continues to tell everybody that it’s just seven days.”

Merck attorney Richard Josephson said in his opening statement that the plaintiffs’ evidence that Garza had taken Vioxx for more than a week was scanty.

“You’re going to have to believe a lot of preposterous stuff to believe there was Vioxx (taken) after April 3,” Josephson said. Garza died on April 21, 2001.

But even if he had taken Vioxx up until his death, Josephson said there was no evidence to link short-term use to heart attacks.

“There’s really not a short-term risk that they’re concerned about,” he said. “They’re concerned about a long-term risk.”

Ronald Hole, attorney for two doctors also named in the lawsuit against Merck, said the evidence would show that Garza wasn’t even taking Vioxx when he died.

“All of it boils down to one thing: was he taking Vioxx at the time of his death. And he wasn’t,” Hole said.

Hole said Garza’s wife, Felicia, has said he only took it for one week.

Garza’s lawyers are seeking $1 billion in punitive damages from Merck.

A jury of 10 men, two women and two female alternates were chosen Tuesday to hear the fourth Vioxx lawsuit to go to trial.

Legal experts have said that Starr County, on the Mexican border in South Texas, is known for being plaintiff friendly.

“The dispute is a very simple one,” defense attorney Richard Josephson said Tuesday during jury selection. “It is whether Vioxx played any role whatsoever in the death of Leonel Garza.”

Josephson said autopsy results showed Garza’s disease had progressed to the point that his leg arteries would have been too clogged for a bypass operation.

Whitehouse Station, N.J.-based Merck is facing hundreds of lawsuits from people who took the once-popular painkiller before it was pulled from the market in September 2004, when a study showed it could double risk of heart attack or stroke if taken for 18 months or longer. However, Merck says no such risk has been shown for shorter periods.

In previous trials, Merck lost a case in a Texas court and won in a New Jersey court. A federal trial ended in a mistrial.

The Starr County trial is expected to last through March with the judge hearing one week of testimony each month because of other duties.

© 2013 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

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