Subaqua Sternal Rubs

Looks like the big payoff, little risk malpractice lottery has a new player:

Merck asked yesterday for the dismissal of the first Vioxx personal injury lawsuit scheduled to come to trial, contending that a man who died of a heart attack after being prescribed Vioxx never took the drug. The pharmaceutical company says that the man's widow has repeatedly lied and produced false evidence.

…The suit that Merck is seeking to dismiss was filed in August 2003 in Ashland, Ala., a rural town of 2,500 about 75 miles east of Birmingham, by Cheryl Rogers, the widow of Howard B. Rogers. The suit contends that Mr. Rogers, a 42-year-old ambulance dispatcher, died from a heart attack on Sept. 4, 2001, after taking Vioxx for shoulder pain.

But lawyers for Merck said yesterday that the suit should be thrown out because the company could prove that it had not distributed until early 2002, several months after Mr. Rogers died, the Vioxx that the plaintiff contends Mr. Rogers took. As a result, Mr. Rogers could not have taken the Vioxx that supposedly caused his heart attack, the company said.

…According to Merck's filing, Ms. Rogers initially said that her husband "took Vioxx for a long time on a very regular basis." When Merck's lawyers pressed her for details, she said that he had visited a doctor on Aug. 10, 2001, 25 days before he died, and received a prescription for Vioxx. But the prescription was never filled, according to Merck. Instead, Ms. Rogers said that her husband had taken samples of Vioxx he received from his doctor in the month before he died. She said she stood next to him when he received the samples.

At a deposition last January, Ms. Rogers offered an unopened pack of 32 Vioxx sample pills to back her claim. Merck's lawyers then contended that because the pack was not opened, Mr. Rogers could not have taken the sample pills in it.

Ms. Rogers then changed her story, according to Merck's filing yesterday. She claimed that her husband had been given three sample packs, totaling 96 pills. He had taken about 20 pills before he died, she said. She also said she had kept the rest in her safe. Later, she provided Merck with about 12 pills from a second sample pack of 32. She claimed the third pack had been stolen after she moved it from her safe to a book bag in her car, though she acknowledged that she had never filed a police report for the theft.

Suspicious of Ms. Rogers's story, Merck checked the samples, which federal rules require be closely tracked. The company said its records showed that the samples did not arrive at its distribution warehouse until March 2002, six months after Mr. Rogers died.

Dr. William Clancy, the doctor who treated Mr. Rogers, also contradicted Ms. Rogers's story, saying that he usually gave out only two to five days' worth of Vioxx.

The company concluded its filing by asking the judge to dismiss the suit with prejudice, a legal term that means it cannot be refiled.

Read the full story at the New York Times.

What is it about our legal system that encourages people to sue at the drop of a hat, even with falsified evidence? Oh yeah, dreams of a highly undeserved, multi-million dollar payout with absolutely no risk (as the lawyer doesn't have to be paid unless he wins. Then he collects 1/3 or more of that multi-million dollar payout).

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