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First federal Vioxx trial gets under way

/ Source: The Associated Press

A lawyer representing the widow of man who claims that Merck & Co.’s Vioxx caused her husband’s death called the link between the pain reliever and heart attacks the company’s “dirty little secret.”

Andy Birchfield told jurors in his opening statement in the first federal trial concerning Vioxx safety that Richard “Dicky” Irvin was a strong, healthy man who had never missed a day of work.

“There was nothing that would have triggered a fatal heart attack except for Vioxx,” the attorney said as he laid out a timeline intended to show that Merck knew Vioxx was dangerous long before it pulled the drug from the market last year.

The case pits the widow of Irvin, Evelyn Irvin Plunkett, against Merck, which has scored a loss in Texas and a win in its home turf of New Jersey in the first two state-level Vioxx cases.

Earlier, the court selected a jury of five men and four women — three of those alternates — to determine whether the one-time blockbuster drug caused Irwin’s fatal heart attack in May 2001. The 53-year-old manager of a wholesale seafood distributor in St. Augustine, Fla. had been taking the drug for about a month to alleviate back pain when his co-workers found him dead at his desk.

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

Birchfield, who spoke for less than an hour, noted that Merck likes to cherry pick the 18-month hallmark to demonstrate that the drug could not have caused problems in patients who took it for a shorter time. But he told jurors a study showed Vioxx can cause problems after just seven days.

He said that Merck knew about Vioxx’s safety problems before it was launched in 1999. Birchfield quoted from internal e-mails, including some from Merck scientists who raised warning flags about its cardiovascular risks, to support his assertions.

Merck made a “premeditated, financial decision” not to warn patients about the drug’s risks because it wanted the revenue the former $2.5 billion seller would generate, and longed to beat Pfizer Inc.’s competing drug Celebrex in the marketplace, he said.

Birchfield also said Irvin had 60 percent blockage in an artery, but that wouldn’t have been enough to cause a heart attack.

Birchfield conceded that Irvin wasn’t examined before taking Vioxx; he first used a sample given to him by a friend and then asked his son-in-law, a physician, to write him a prescription. The attorney said an exam wouldn’t have made any difference because a doctor would have given him Vioxx if asked.

Merck’s attorneys are yet to present their opening statement. But the company’s court filings indicate 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.

The court took roughly two hours to choose the panel of six jurors, which is common in most federal civil cases.

The case before U.S. District Judge Eldon Fallon of New Orleans is in Houston rather than its original venue of New Orleans because of damage wrought by Hurricane Katrina.

The company faces about 7,000 state and federal lawsuits and analysts have estimated its liability could reach $50 billion.