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Merck seeks postponement of Vioxx case
Drug giant's lawyers say 'negative publicity' has hurt the company's chances for a fair trial.
July 5, 2005: 10:47 AM EDT
By Aaron Smith, CNN/Money staff writer

NEW YORK (CNN/Money) - Merck, the drug maker that faces thousands of lawsuits following the withdrawal of the painkiller Vioxx, has requested that a Texas judge postpone the first of its civil trials because of recent negative publicity.

Merck & Co. (down $0.25 to $30.81, Research) filed a motion requesting that Texas Superior Court postpone its July 11 date, when Houston attorney W. Mark Lanier is scheduled to take on the company on behalf of Carol Ernst, who blames Vioxx for the 2001 death of her husband.

The motion, filed by New York law firm Hughes, Hubbard & Reed, requests a 60-day postponement "on the ground that recent pretrial publicity has destroyed any possibility that Merck can received a fair trial commencing July 11."

Lanier said he asked the judge to deny the continuation.

"Merck's day of reckoning is at hand," said Lanier. "We smell desperation on their part."

Merck's attorneys filed the motion July 1, the day after the Texas Attorney General Greg Abbott sued the drug maker for allegedly misrepresenting the safety of arthritis painkiller Vioxx. Abbott is seeking $168 million in damages because the Texas Medicaid program reimbursed pharmacists for Vioxx prescriptions.

"Whatever lies behind this suspicious timing, it effectively eliminates any possibility that Merck can receive a fair trial beginning July 11," read the motion from Hughes, Hubbard & Reed.

Merck's lawyers named the following news agencies as contributors to its negative publicity: CNN, USA Today, The Wall Street Journal, Associated Press, and Texas-based news organizations Houston Chronicle and KHOU-TV.

Merck pulled Vioxx, an arthritis painkiller worth $2.5 billion in annual sales, from the market last Sept. 30, citing a risk of heart attack and stroke from its use. Since that time, more than 2,300 lawsuits have been filed against Merck, a Whitehouse Station, N.J.-based company with $22.9 billion in 2004 sales.

A spokesman for Hughes, Hubbard & Reed said the firm plans to defend Merck in the Ernst case by pointing to a lack of scientific evidence proving that Vioxx caused the plaintiff's death.

Other drugs in the class of cox-2 inhibitors, which block joint inflammation, have run into trouble with the Food and Drug Administration.

On April 7, the FDA asked Pfizer Inc. (down $0.01 to $27.09, Research), the world's biggest drug company, to take Bextra, a $1.3 billion drug, off the market. On the same day, the FDA said it was considering a black box, its most serious warning, for Celebrex, a $3.3 billion blockbuster. Pfizer is in negotiations with the FDA over details of the label.

These drugs were approved by the FDA before entering the market.

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