Until today it looked as if the first Vioxx wrongful-death action to go to trial against Merck & Co. since the painkiller’s withdrawal from the market would be Cheryl Rogers’ lawsuit in an Alabama state court over the death of her late husband Howard. Now, at the request of a federal judge who is presiding over other Vioxx cases, the parties have agreed to postpone trial in the Rogers case, which had been set to start next month. (Theresa Agovino, “First Vioxx trial to be postponed”, AP/Business Week, Apr. 28). That’s a pity, since it would have been illuminating to get to the bottom of the allegations about the case aired in recent weeks. Per AP:

Rogers had claimed in a sworn statement that her husband was taking Vioxx samples provided by Dr. William Clancy in the days before he died, according to the motion filed by the drug company in Clay County, Ala. But when Merck checked the lot numbers of the remaining samples against its records, the company said it found that those samples did not leave the company’s possession until March 2002. Howard Rogers died on Sept. 4, 2001.

The motion also said that Clancy’s records don’t show that Rogers received any samples….There was a record of a Vioxx prescription but it was never filled, according to the motion.

(Theresa Agovino, “Merck asks judge to dismiss Vioxx trial”, AP/ABCNews.com, Apr. 12).

The New York Times account gets into more detail:

But according to Merck’s filing, Ms. Rogers initially said that her husband “took Vioxx for a long time on a very regular basis.” When Merck’s lawyers pressed her for details, she said that he had visited a doctor on Aug. 10, 2001, 25 days before he died, and received a prescription for Vioxx. But the prescription was never filled, according to Merck. Instead, Ms. Rogers said that her husband had taken samples of Vioxx he received from his doctor in the month before he died. She said she stood next to him when he received the samples.

At a deposition last January, Ms. Rogers offered an unopened pack of 32 Vioxx sample pills to back her claim. Merck’s lawyers then contended that because the pack was not opened, Mr. Rogers could not have taken the sample pills in it.

Ms. Rogers then changed her story, according to Merck’s filing yesterday. She claimed that her husband had been given three sample packs, totaling 96 pills. He had taken about 20 pills before he died, she said. She also said she had kept the rest in her safe. Later, she provided Merck with about 12 pills from a second sample pack of 32. She claimed the third pack had been stolen after she moved it from her safe to a book bag in her car, though she acknowledged that she had never filed a police report for the theft.

Suspicious of Ms. Rogers’s story, Merck checked the samples, which federal rules require be closely tracked. The company said its records showed that the samples did not arrive at its distribution warehouse until March 2002, six months after Mr. Rogers died.

Dr. William Clancy, the doctor who treated Mr. Rogers, also contradicted Ms. Rogers’s story, saying that he usually gave out only two to five days’ worth of Vioxx.

(Alex Berenson, “Merck Asks for a Dismissal in First of Suits Over Vioxx”, New York Times, Apr. 13).

Representing Mrs. Rogers is the well-known injury law firm of Beasley Allen, whose doings have been much chronicled in this space (Nov. 16, 1999, Dec. 1, 2003, Jun. 1, 2004, Apr. 15, 2004, Nov. 24, 2004). Beasley lawyers “disputed Merck’s claims and said that they had evidence that Mr. Rogers took Vioxx before he died.” In particular, the firm “provided a report from a doctor who saw Mr. Rogers 11 days before he died. In the report, Mr. Rogers said that he took Vioxx about once a week — not every day, as Ms. Rogers claimed.” (Berenson, NYT). And Jere Beasley, name partner in the firm, had this interesting comment:

“If they think the woman’s lying, let them prove it in the courthouse,” Mr. Beasley said. “Folks said he took Vioxx, and that’s about the end of it, as far as I’m concerned.”

As the unwelcome press coverage burgeoned, the Beasley firm also moved to sanction Merck, saying the drug firm had violated a gag order and also had violated HIPAA, the federal medical-privacy act, by releasing information about the late Mr. Rogers. (“Beasley Allen Law Firm Files Motion for Sanctions Against Merck in Vioxx Lawsuit”, press release, Apr. 25). Mrs. Rogers, previously described as unavailable for comment, became available for a relatively sympathetic AP story which relayed her contention that she had just been confused about the sample details (Agovino, “Amid testy lawyers, Vioxx plaintiff calm”, AP/Business Week, Apr. 26; “Vioxx cases continue to echo bad news for Merck”, AP/Newark Star-Ledger, Apr. 27).

A review by another AP reporter, incidentally, found that “six PACs funded entirely by the Beasley Allen law firm contributed $35,000 directly to Circuit Judge John Rochester’s unsuccessful campaign for the Alabama Supreme Court in 2004. Five other PACs funded entirely by the law firm gave $25,000 to Rochester’s campaign, routing it through another PAC” with the benign name of Alabama League of Environmental Action Voters. Judge Rochester is presiding over the Rogers case. (Phillip Rawls, “Plaintiff lawyers in first Vioxx case donated $60,000 to Alabama judge’s campaign”, AP/Detroit News, Apr. 23). More: judge refuses to dismiss case, orders settlement conference (Jay Reeves, “Alabama judge orders settlement talks in Vioxx case”, AP/Tuscaloosa News, May 2). Update Jul. 22: Washington Legal Foundation files misconduct complaint against judge.

Filed under: Alabama, Detroit, HIPAA