Next Trial to Focus on Limited Vioxx Use

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Fresh off a victory in the last Vioxx case to go to trial, Merck & Co Inc. (MRK) is preparing to start fighting another lawsuit over the painkiller later this month in a Houston federal court.

Legal experts say the upcoming case — the first to be heard in a federal, rather than state court — may be particularly challenging for the plaintiff, the widow of Richard "Dicky" Irvin Jr.

Irvin, a 53-year-old seafood company manager in St. Augustine, Fla., died in May 2001 after taking the drug for less than a month.

Merck pulled Vioxx from the market last year after a study showed it raised heart risks after 18 months of use. The company earlier this month won a New Jersey case filed by a heart attack victim who used the drug for just two months, but it lost an earlier case in Texas state court filed by the widow of a man who took Vioxx for about eight months.

The amount of time that Irvin took the drug "will be an important issue," said Carl Tobias, a law professor at the University of Richmond in Virginia, who has tracked the Vioxx litigation.

"Merck keeps contending that 18 months is the critical point," he said. "I expect they'll emphasize that."

Jere Beasley, an Alabama lawyer who represents Irvin's widow, Evelyn Irvin Plunkett, in the upcoming suit, said on Wednesday that the amount of time that the man took the drug should not be an issue.

In an interview with Reuters, Beasley said Merck's own studies have shown that short-term use of Vioxx "is just as bad as long term use." He said that Irvin, a former college football player who took Vioxx for back pain, died after suffering a blood clot that caused sudden cardiac death.

"Here is a man who was healthy as a horse," Beasley said. "He had no high blood pressure. He was not clogged up like they've claimed. He had no more plaque build-up than any other 53-year-old man in America."

Kent Jarrell, a spokesman for Merck's legal team, declined to comment on the case on Wednesday, saying that U.S. District Judge Eldon Fallon had asked both sides not to comment until the trial is concluded. The case is expected to begin on November 29.

Whitehouse Station, New Jersey-based Merck has argued previously that Irvin's age, weight and other medical factors are to blame for the heart problems that led to his death.

Merck faces more than 6,500 lawsuits from former Vioxx users who claim to have been harmed by the drug, which once pulled in $2.5 billion in annual sales. The company, which has set aside $675 million to fight the Vioxx lawsuits, has vowed to defend each case one by one.

The drugmaker's shares were down 9 cents at $29.93 on the New York Stock Exchange. The stock is down about a third from nearly $45 a share before Vioxx was withdrawn from the market in September 2004.