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Weitz & Luxenberg Responds to Reversal
Of Merck Vioxx Victory, 6/07
A Federal judge in New Orleans recently threw out a court win by Merck & Co. in one of its trials to defend recalled pain medication Vioxx, citing misrepresentation of credentials by Merck’s primary expert witness. In support of this reversal, these same qualifications had already been called into question a year earlier in a trial by Weitz & Luxenberg, P.C. and The Lanier Law Firm.
U.S. District Judge Eldon Fallon vacated a jury judgment on Tuesday in Merck’s favor, finding that “Plaintiff has demonstrated by clear and convincing evidence that Dr. Rayburn misrepresented his certification status.” Judge Fallon also stated that “not only does Dr. Rayburn’s misrepresentation call into question the Court’s acceptance of him as an expert witness it also sheds an unfavorable light upon his propensity for truthfulness.” The witness in question was Alabama cardiologist Dr. Barry Rayburn, whom Fallon said in his ruling misrepresented his credentials in the trial by saying he was board-certified in internal medicine and cardiovascular disease. In fact, at the time, Rayburn’s certifications had lapsed.
Weitz & Luxenberg attorneys Rob Gordon and Ellen Relkin, as well as Mark Lanier of the Lanier Law Firm, first raised those questions in a Vioxx trial last year involving plaintiffs John McDarby and Thomas Cona. It was the information exposed by the Cona-McDarby trial team that was the factual basis for the reversal by Judge Fallon.
“Ellen found the misrepresentation through her incredible diligence, and Lanier generously allowed me the honor of exposing the expert’s misrepresentation to the jury,” said Gordon.
Relkin pointed out that under the American Board of Internal Medicine Guidelines it is impermissible to mention board certification if those credentials have expired, and that when a physician misrepresents certification status, the Board Guidelines find it so serious a breach that the Board may notify credentialing bodies, licensing boards and even law enforcement agencies.
In that Vioxx trial, for John McDarby, a wheelchair-bound diabetic who suffered a heart attack after taking Vioxx (case # ATL L 1296-05), Gordon asked Rayburn about having misrepresented his credentials under oath to a jury six weeks earlier in New Orleans:
“…seven questions into an exam by a Merck lawyer, they said, ‘Are you board certified, sir?’ You answered, ‘Yes. I passed boards in internal medicine and cardiovascular disease.’ That wasn’t true, was it?”
Gordon additionally challenged Rayburn’s credibility as a witness, questioning him in cross examination about his paid legal work for Merck, as well as his ongoing involvement in other Vioxx trials. Gordon asked him, “Isn’t it true that you expect Merck will continue to ask you to be an expert witness in Vioxx litigation around the country?” Rayburn admitted he would.
Lanier exposed Rayburn’s conflict as an expert medical witness by arguing he had cherry-picked studies for his testimony, egregiously omitting even those funded by Merck that revealed an elevated risk of heart attacks in Vioxx users. As with this latest loss for Merck, Rayburn’s questionable credentials played a hand in Rob Gordon, Jerry Kristal, Ellen Relkin and Mark Lanier ultimately securing a $13.5 million victory against Merck in April 2006.
People who have been injured after ingesting Vioxx or any other medication, can contact Weitz & Luxenberg, P.C. Interested parties should complete the form below for a complementary legal review.
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