Federal judge throws out a Merck Vioxx victory

LOS ANGELES (Reuters) - A U.S. judge in New Orleans threw out a Vioxx victory for Merck, citing misrepresentation by a key company witness and clearing the way for a third trial in the case of a widow who charges that the painkiller caused her husband's fatal heart attack.

U.S. District Judge Eldon Fallon on Tuesday granted Evelyn Irvin Plunkett's motion for a new trial and vacated a jury judgment in favor of Merck (MRK.N) "due to a misrepresentation by one of Merck's primary witnesses that prevented Ms. Plunkett from fully and fairly presenting her case."

Fallon, who oversees all federal Vioxx lawsuits, said in his ruling that Dr. Barry Rayburn misrepresented his credentials to the court and jury in the trial by testifying he was a board-certified cardiologist when he was not.

Rayburn, who teaches at a medical school and is in private practice in Alabama, is a "retained expert witness" for Merck and has since renewed his lapsed board certification, said Ted Mayer, an outside attorney who works on the Vioxx litigation.

Mayer said Merck will be ready if a third Plunkett trial should come and predicted the plaintiff will face an uphill battle in court.

"The fact is that this man had abundant risk factors which explain what happened to him," he said.

Mayer said Rayburn has testified in only one other case, a New Jersey trial in which plaintiff John McDarby alleged the company failed to warn consumers of the drug's cardiovascular risks. He was awarded damages of more than $13 million in April 2006. Merck's motion for a new trial is pending.

FATAL HEART ATTACK

Richard "Dickie" Irvin, Plunkett's husband, was 53 when he suffered a fatal heart attack in May 2001 after taking Vioxx for less than one month.

Plunkett filed her original lawsuit against Merck in a Florida state court in 2003. That suit was dismissed and refiled in August 2005 in federal court in New Orleans.

That case, the first federal lawsuit involving an alleged Vioxx death to go to trial, ended in a mistrial after the jury could not reach a unanimous verdict. In February 2006, a new jury returned a verdict in favor or Merck.

Merck faces nearly 27,300 lawsuits from people who claim to have been harmed by the once $2.5 billion-a-year arthritis drug that was pulled from the market in 2004 after a study showed it doubled the risk of heart attack and stroke in patients taking it for at least eight months.

Juries have now found in favor of Merck nine times and in favor of plaintiffs five times.

In its most recent quarterly report filed with the U.S. Securities and Exchange Commission, the company said it had a reserve of $737 million set aside for future legal defense costs related to Vioxx as of March 31.

On December 13, a New Orleans jury deliberated for less than two hours before rejecting a claim that Vioxx was the primary cause of plaintiff Anthony Dedrick's 2003 heart attack.

Jurors in that case also found the drugmaker adequately warned of the heart risks associated with the medicine.

Shares of Merck ended down 1.3 percent, or 69 cents, at $52.71 on the New York Stock Exchange.