Judge Fallon Ruling: Jury Will Hear And See Dr. Topol Criticize Merck In Video Deposition At Irvin / Plunkett Trial

On November 30, 2005 The Wall Street Journal (WSJ) reported that the jury in the first federal Vioxx trial will hear testimony from Eric Topol, M.D., a leading cardiologist, which apparently is critical of actions Merck took concerning Vioxx.  Dr. Topol had not testified in either of the first two Vioxx trials, Ernst (TX) and Humeston (NJ).

On the first day of the Irvin / Plunkett v. Merck trial, U.S. District Court Judge Eldon Fallon ruled that a videotaped deposition of Dr. Topol can be presented to the jury by lawyers for plaintiff Evelyn Irvin Plunkett, the widow of Richard "Dicky" Irvin.

This testimony was given last week by Eric Topol, chairman of cardiovascular medicine at the Cleveland Clinic, after Dr. Topol was subpoenaed to appear for a deposition by a plaintiff’s lawyer.  Reportedly, Dr. Topol’s deposition testimony had not been presented to the Irvin / Plunkett jury when the November 30 WSJ article was published.  Further, the Topol deposition is "sealed" by order of Judge Fallon, who is presiding over the Irvin / Plunkett trial.

The Wall Street Journal, however, had obtained and reviewed the transcript of this November 2005 Topol deposition.  The November 30 WSJ article reported that Dr. Topol criticized actions Merck took concerning Vioxx in several regards.  Dr. Topol provided testimony which, according to the WSJ article: "accused Merck of scientific misconduct, misrepresenting facts and endangering patients, and said Merck’s former chief executive complained to a top Cleveland Clinic official about Dr. Topol’s activities".

As background, Dr. Topol was one of the earliest critics of Vioxx.  About three years before Merck pulled Vioxx from the market in September 2004, Dr. Topol published a paper in the Journal of the American Medical Association ("JAMA") that raised the issue of whether Vioxx potentially caused heart problems. In his JAMA paper, Dr. Topol said Merck should do a long-term study to investigate whether Vioxx increased cardiovascular risks.

In this recent Topol deposition testimony, according to the WSJ article, Dr. Topol took issue with several crucial points of Merck’s defense in the Vioxx litigation.  For example, in 2000, after the VIGOR study showed that Vioxx was four to five times more likely to cause cardiovascular problems than naproxen (an older painkiller), Merck tried to explain-away this finding with their contention that naproxen somehow provided protection against cardiovascular problems. At this Topol deposition last week, however, Dr. Topol seemingly disagreed with Merck’s explanation when he testified, "There are no data that I am aware of" showing naproxen protects the heart."

Another aspect of Dr. Topol’s deposition in November 2005 had to do with allegations that Merck tried to intimidate him and other doctors who were critical of Merck as regards their marketing of Vioxx.  For this testimony by Dr. Topol we turn to the November 30 WSJ article by Heather Won Tesoriero:

"During his deposition testimony, Dr. Topol said that a colleague at the Cleveland Clinic, Richard Rudick, the director of clinical research, told him that Raymond Gilmartin, the former chief executive and chairman of Merck, called a Cleveland Clinic board of trustee member to complain about Dr. Topol. The call came in mid-October 2004, two weeks after Merck withdrew Vioxx from the market and after Dr. Topol published harsh criticisms of Merck over Vioxx in the New York Times and the New England Journal of Medicine."

"Dr. Topol said that according to Dr. Rudick, Mr. Gilmartin called Malachi Mixon, chairman of the board of trustees at the Cleveland Clinic, and ‘said to Mr. Mixon, what has Merck ever done to the Cleveland Clinic to warrant this?’ In the deposition testimony, Dr. Topol said he never asked Mr. Mixon about the event."

At the time of the November 30 article, Dr. Topol was said to have refused a WSJ reporter’s request for comment about his Vioxx testimony.  Dr. Topol cited the fact that his Vioxx deposition transcript is sealed by order of Judge Fallon.

(Posted by: Tom Lamb)