A judge on Tuesday declined to postpone the first state wrongful death trial related to the painkiller Vioxx, but said he would check questionnaires filled out by potential jurors for evidence that they were biased by pretrial publicity.
“For now, we’re going to keep going,” State District Judge Ben Hardin told lawyers for Merck & Co., the manufacturer of Vioxx.
Merck asked for a two-month delay to allow for a “cooling-off” period for any bias that could taint a jury pool arising from news coverage of a lawsuit Texas Attorney General Greg Abbott filed last week against the drug maker.
Merck withdrew the drug in September when research showed that patients who took it for 18 months or longer more than doubled their risk for heart attack and stroke. Since then, more than 2,400 Vioxx lawsuits have been filed nationwide.
In the $250 million lawsuit, Abbott alleges that Merck defrauded Texans by representing Vioxx as safe when pushing for it to be included on the state’s list of medicines approved for Medicaid.
The company’s motion for a delay says Abbott’s suit “effectively eliminated any possibility Merck can receive a fair trial beginning July 11.”
The filing said a story in the “national media” which cited a privileged attorney-client communication could prejudice a jury against it. The Associated Press reported June 22 that Merck scientists had contacted company attorneys in 2000 about reformulating Vioxx over concerns it could cause negative cardiovascular side effects.
But Ken Soh, a plaintiff’s lawyer in the case, said that regional newspapers gave minimal coverage to Abbott’s lawsuit and other Vioxx-related issues.
Hardin said attorneys can hash out questions to include on questionnaires intended to ferret out bias at a hearing Thursday. They also can gauge any taint during jury selection next week.
Lead plaintiff’s attorney Mark Lanier had said Monday that Merck signed an agreement with him in May not to postpone the trial for any reason other than the health of the lead attorneys.
In the filing, Merck said that a law firm that helped the attorney general’s office on the lawsuit represents at least six plaintiffs suing the company.
“The timing of the (state) lawsuit is hardly a coincidence,” according to Merck’s motion.