Texas Judge Denies Merck’s Request to Delay First Vioxx Case

On July 5, 2005 a Texas judge declined a request by lawyers for Merck & Co. to postpone the nation’s first Vioxx trial, which is scheduled to start July 11, 2005 in a Brazoria County, Texas state court.

By denying Merck’s motion for a continuance, or postponement, State District Judge Ben Hardin gave the "green light" for this wrongful death Vioxx case to proceed as scheduled.  Addressing the grounds for postponement offered by Merck’s attorneys, Judge Hardin said he did not accept drug company’s contention that potential jurors were necessarily biased by recent pretrial publicity regarding Vioxx in Texas. In particular, Merck contended that there was bound to be some prejudice among potential jurors arising from the a civil fraud lawsuit that the Texas Attorney General announced and filed during the week of June 27, 2005.

Judge Hardin did acknowledge the possibility of some potential jurors having heard about the Texas Attorney General’s Vioxx lawsuit, and that such news might prejudice a juror against Merck.  Accordingly, Judge Hardin told attorneys for Vioxx maker Merck that he will review the responses to jury questionnaires which will be completed by the initial pool of 100 potential jurors when the first Vioxx trial starts next week. Judge Hardin said that, in order to assure that Merck will receive a fair trial, he would reconsider Merck’s request for a postponement after his review of the completed questionnaires some time next week.  "For now, we’re going to keep going," Judge Hardin said.

The Merck motion for continuance also made reference to a story in the national news that cited a privileged attorney-client communication concerning Vioxx.  Merck’s lawyers argued that this national news, also, could prejudice a Texas state court jury against the drug company.  Specifically, Theresa Agovino, of The Associated Press, reported on June 22, 2005 about this internal Merck document which showed that Merck researchers had contacted Merck attorneys in 2000 about possibly reformulating Vioxx so as to mitigate increasing concerns about Vioxx having a negative cardiovascular safety profile.

(Posted by: Tom Lamb)