Personal Injury Litigation

Pennsylvania - New Jersey - New York - Nationwide

The following is excerpted from the deposition of Dr. Peter S. Kim, president of Merck Research Laboratories, in the national Vioxx litigation. In his testimony, Kim acknowledges his failure to report adverse reactions among patients who used Vioxx to the U.S. Food and Drug Administration (FDA). He also tells of his own mother’s use of Vioxx – and that she stopped taking the medication after he informed her of its impending recall. Questioning Kim for the plaintiffs is Shanin Specter of Kline & Specter, P.C

March 16, 2005

25 Q. Dr. Kim, let me ask you, have you

1 personally ever taken Vioxx?
2 MR. SPECTER: Objection.
3 MR. MEADOW: Objection.
4 THE WITNESS: Yes, I have.
5 BY MR. KIERNAN:
6 Q. Did you, as the head of all science
7 at Merck, believe Vioxx was safe when you took it?
8 MR. MEADOW: Objection.
9 THE WITNESS: Yes, I did.
10 BY MR. KIERNAN:
11 Q. Has anyone in your family taken
12 Vioxx?
13 MR. MEADOW: Objection.
14 MR. SPECTER: Objection.
15 THE WITNESS: Yes. My mother has
16 taken Vioxx.
17 BY MR. KIERNAN:
18 Q. What condition did your mother take
19 Vioxx for?
20 A. For arthritis.
21 Q. Did Vioxx work for your mother?
22 A. Yes, it did.
23 Q. Did you recommend that your mother
24 take Vioxx after the results of the VIGOR study
25 became available?

944
1 MR. MEADOW: Objection.
2 THE WITNESS: Yes, I did.
3 BY MR. KIERNAN:
4 Q. How long did your mother take Vioxx?
5 MR. SPECTER: Objection.
6 THE WITNESS: My mother took Vioxx up
7 until the day it was withdrawn from the market.
8 BY MR. KIERNAN:
9 Q. Were you ever worried that members of
10 your family were taking Vioxx?
11 MR. SPECTER: Objection.
12 THE WITNESS: No, I was not.
13 BY MR. KIERNAN:
14 Q. Why were you not worried?
15 A. Well, because I had reviewed and was
16 very familiar with the safety data surrounding Vioxx
17 and indeed had studied it very carefully.

June 8, 2005

13 Now, Dr. Kim, I don't like asking you
14 about your personal health or that of your mother,
15 but since your lawyer asked you about it and you
16 chose to answer, I'm obligated to ask you some
17 questions.
18 So, let's start with your mother.
19 What is her name?
20 A. My mother's name is Mi Heh Kim.
21 Q. How is that spelled sir?
22 A. M-I, H-E-H, K-I-M.
23 Q. MI?
24 A. H-E-H, K-I-M.
25 Q. Where does she live, sir?

1020
1 A. She lives in New Jersey.
2 Q. Where?
3 A. In Ridgewood, New Jersey.
4 Q. Who is her physician?
5 A. I don't know.
6 Q. Who prescribed Vioxx for her?
7 A. Her physician.
8 Q. You don't know who that is?
9 A. No, I don't.
10 Q. Do you know if that's a
11 rheumatologist or an internist, orthopedist?
12 A. No, I don't.
13 Q. Do you know what dose she was taking?
14 A. I know that she was taking 25
15 milligrams, and sometimes she took 12-and-a-half
16 milligrams.
17 Q. For how long did she take the Vioxx?
18 A. For some time.
19 Q. I'm sure that's true.
20 A. I don't know exactly, but, yeah, it
21 was for some time.
22 Q. Days, months, years?
23 A. Oh, certainly months.
24 Q. Would she take it as needed or would
25 she take one every day?

1021
1 A. She would take it as needed.
2 Q. Was that common with patients as far
3 as you knew, that people who take it as needed?
4 A. It depends on the disease. Patients
5 with osteoarthritis often take it as needed during
6 what are called -- well, patients with
7 osteoarthritis tend to take it more on an as-needed
8 basis, whereas patients with rheumatoid arthritis
9 tend to take it on a more regular basis.
10 Q. She was taking it for which
11 indication?
12 A. For osteoarthritis.
13 Q. How old is she, sir?
14 A. She is 76 years old.
15 Q. When is the last time that she took
16 Vioxx?
17 A. The last time she took Vioxx was, I
18 think, the day before we withdrew Vioxx from the
19 market.
20 Q. The day before?
21 A. Yes.
22 Q. Did you give her a heads up?
23 A. I actually gave her a heads up the
24 night before we had the press conference.
25 Q. Did you tell her, Mom, you ought to

1022
1 stop taking Vioxx?
2 A. No. I said, tomorrow we're going to
3 have a press conference announcing that we're going
4 to withdraw Vioxx, I didn't want you to be
5 surprised, so, I'm giving you this heads up,
6 something that is going to occur tomorrow morning.
7 Q. What did she say?
8 A. I don't recall exactly what she said,
9 but she's very proud of me and my commitment to
10 improving human health, so, she probably said
11 something along the lines of, I'm sure you're doing
12 the right thing.
13 Q. Did she ask you whether you thought
14 she should continue to take Vioxx?
15 A. Not that I recall.
16 Q. Did she indicate to you whether she
17 was going to keep taking Vioxx?
18 A. Not that I recall.
19 Q. How do you know that's the last day
20 she took Vioxx?
21 A. Well, because subsequently she told
22 me that she still had her Vioxx, but that she wasn't
23 taking it anymore.
24 Q. What was your response to that?
25 A. That's true of many people I know.

1023
1 Q. Has she had a cardiac workup since
2 the September occasion when she stopped taking
3 Vioxx?
4 A. Not that I'm aware of.
5 Q. Do you know whether she has sustained
6 a heart attack while on Vioxx?
7 A. No, she has not.
8 Q. How do you know that without a
9 cardiac workup?
10 A. I don't know that she's had a cardiac
11 workup. I'm not aware of her having an MI.
12 Q. You could not know if she had
13 suffered a heart attack without a cardiac workup;
14 correct?
15 A. If -- fine. I'm not aware of it.
16 Q. Am I correct, sir, that you could not
17 know if a person has suffered a heart attack without
18 an EKG being performed?
19 A. I don't know the answer to that
20 question.
21 Q. Have you told your mother that she
22 ought to go get a cardiac workup?
23 A. No, I have not.
24 Q. Does your mother know that you were
25 going to be discussing her personal health today?

1024
1 MR. KIERNAN: Objection to form.
2 THE WITNESS: No, she doesn't.
3 BY MR. SPECTER:
4 Q. Do you think she'd mind about that?
5 A. I don't know.
6 Q. Are you going to tell her?
7 A. I think so.
8 Q. Let's talk about you, again, since
9 you brought it up. You didn't bring it up, but your
10 lawyer did, and you answered.
11 For what reason did you take Vioxx?
12 A. I took Vioxx because I've had a back
13 problem, so, occasionally there are flare-ups, I
14 took it for that, as well as for pain in my foot. I
15 have a syndrome called plantar fasciitis.
16 Q. Do you have osteoarthritis?
17 A. Not that I'm aware of.
18 Q. What kind of a back problem do you
19 have?
20 A. It's an old problem which was a
21 slipped disk.
22 Q. What is it now?
23 A. Sorry?
24 Q. What is it now?
25 A. Just a pain in my back once in a

1025
1 while.
2 Q. That sounds familiar.
3 Were you taking it for indications
4 that were recognized on the label?
5 A. Acute pain is probably the closest
6 having to do with the plantar fasciitis in my foot.
7 Q. Is that also true of the back?
8 A. The back was also on an acute basis.
9 Q. So, you would not have taken --
10 strike that.
11 What dosage were you taking?
12 A. Generally speaking, I was taking 25
13 milligrams.
14 Q. How about when that wasn't the case?
15 A. Sometimes I would take 50 milligrams.
16 Q. Would that depend upon how much pain
17 you had?
18 A. Yes. It would depend on whether or
19 not -- yes, on the pain relief, I would say.
20 Q. The more you took, the more pain
21 relief you would get?
22 A. If it was for an acute flare-up and I
23 was in extreme pain, I would take 50 milligrams.
24 Q. What was associated with your having
25 an acute flare-up?

1026
1 A. I don't know.
2 Q. Swinging a golf club or being out in
3 the yard gardening or --
4 A. I don't know.
5 Q. You don't know. Okay.
6 Now, what is the longest you ever
7 took Vioxx 50 milligrams?
8 A. Oh, just a few days.
9 Q. Less than five?
10 A. Yes.
11 Q. How about 25 milligrams?
12 A. Probably similar, less than a week.
13 Q. You would take it as needed?
14 A. Yes.
15 Q. How many times do you think you took
16 Vioxx all told?
17 A. Maybe 50.
18 Q. Did you ever take Vioxx before you
19 were an employee of Merck?
20 A. No, I did not.
21 Q. When is the first time you took
22 Vioxx?
23 A. Oh, I don't recall.
24 Q. Can you give me a rough estimate?
25 A. A rough estimate? After I joined

1027
1 Merck, a year or two after that, so, 2002/2003. You
2 are asking for a rough estimate?
3 Q. Yes, I am.
4 When was the last time you took
5 Vioxx?
6 A. I don't recall.
7 Q. Before or after the recall?
8 MR. KIERNAN: Objection to form.
9 BY MR. SPECTER:
10 Q. Before or after the withdrawal?
11 MR. KIERNAN: Voluntary withdrawal.
12 BY MR. SPECTER:
13 Q. Before or after the involuntary
14 withdrawal?
15 MR. KIERNAN: Objection to form.
16 THE WITNESS: The last time I took
17 Vioxx was actually after the withdrawal.
18 BY MR. SPECTER:
19 Q. Okay. That's interesting.
20 When was that?
21 A. That was January of 2005.
22 Q. Okay.
23 It wouldn't surprise you if other
24 people had taken Vioxx after the withdrawal since
25 you've done it yourself; correct?

1028
1 MR. KIERNAN: Objection to form.
2 THE WITNESS: I think that's
3 speculative.
4 BY MR. SPECTER:
5 Q. Would it be speculative?
6 A. I'm sorry. Your question is, it
7 would not surprise me?
8 Q. Yes.
9 A. It would not surprise me.
10 Q. And you wouldn't fault somebody who
11 took Vioxx after the drug was withdrawn, would you,
12 sir?
13 MR. KIERNAN: Objection to form.
14 THE WITNESS: Oh, I wouldn't fault or
15 not fault someone.
16 BY MR. SPECTER:
17 Q. Right.
18 How many times did you take Vioxx
19 after it was withdrawn from the market?
20 A. Just that one time for a few days.
21 Q. What was that associated with?
22 A. It was associated with some acute
23 pain.
24 Q. Where?
25 A. Actually on a skiing vacation.

1029
1 Q. I meant where in your body, but
2 thanks for telling me.
3 A. It was acute pain in -- I can't
4 remember where it was.
5 Q. In Aspen?
6 A. It was actually in Utah.
7 Q. Where in your body?
8 A. In my legs.
9 Q. Was this that plantar fasciitis issue
10 or something else?
11 A. It was not that issue.
12 Q. Where in your legs do you have pain?
13 A. It was generally both of my legs from
14 the skiing.
15 Q. Was that muscular or was it skeletal?
16 A. I don't know.
17 Q. Did it provide relief?
18 A. Yes, it did.
19 Q. Now, you don't live in Utah, do you?
20 A. No, I don't.
21 Q. You don't have a house there, do you?
22 A. No, I don't.
23 Q. You were staying in a hotel?
24 A. Yes.
25 Q. So, if you were staying in a hotel,

1030
1 you must have had some Vioxx with you when you went
2 out to Utah; is that right?
3 A. That's correct.
4 Q. You packed it in your bags before you
5 left from Bryn Mawr?
6 A. Actually, it was in the bag, never
7 took it out.
8 Q. Still there?
9 A. I don't know.
10 Q. Did you know that you had it when you
11 went to Utah?
12 A. I don't know.
13 Q. Well, when you felt the pain, did it
14 occur to you, gee, I have Vioxx with me, I guess I
15 can take it?
16 A. At some point it did, because I did
17 that.
18 Q. Right.
19 When you went to your, I guess it was
20 your toiletries bag?
21 A. Yes.
22 Q. When you went to your toiletries bag,
23 were you surprised to see it in there?
24 A. No.
25 Q. What dosage did you take?

1031
1 A. 25 milligrams.
2 Q. And for how long?
3 A. I can't remember exactly, but two or
4 three days.
5 Q. How long was the trip?
6 A. One week.
7 Q. Did you experience this pain after
8 your first day on the ski slopes?
9 A. No. It was towards the middle of the
10 week.
11 Q. Did it provide relief?
12 A. Yes, it did.
13 Q. Now, did your doctor know that you
14 were taking Vioxx after the drug was withdrawn from
15 the market?
16 A. No.
17 Q. Have you told him since then, him or
18 her, since then?
19 A. No.
20 Q. What doctor prescribed Vioxx to you?
21 A. I don't remember his name offhand.
22 It's a physician in the Merck health system. I
23 don't remember his name exactly right now.
24 Q. Is he a treating doctor for you?
25 A. What do you mean "treating doctor"?

1032
1 Q. Well, that's a good question.
2 Does he have an office?
3 A. Yes. Well, he's part of the Merck
4 healthcare system, and he is responsible for
5 treating Merck employees that go to the healthcare
6 system.
7 Q. This would be in Montgomery County,
8 Pennsylvania; is that correct?
9 A. Correct.
10 Q. Did you see him in his office?
11 A. No, I did not.
12 Q. Did you call him on the telephone?
13 A. Yes, I had a discussion with him on
14 the telephone.
15 Q. Did you say something to him like,
16 I'd like some Vioxx, I have some pain?
17 A. Something like that. I described to
18 him the issues that I had with my foot and that I
19 thought that -- I described to him the issues that I
20 was having with my foot, and we discussed the
21 possibility of getting a Vioxx prescription.
22 Q. And he said yes?
23 A. Yes, he did.
24 Q. And he sent over a script for you to
25 fill?

1033
1 A. Correct.
2 Q. Did you ever meet this guy?
3 A. I've met him, but not -- this
4 discussion was over the phone.
5 Q. Have you ever met him in a
6 professional context where he's been treating you?
7 A. No.
8 Q. Do you generally approve of having a
9 pharmaceutical prescribed based upon a phone
10 conversation?
11 A. Oh, I don't have -- I mean, I think
12 that depends on the circumstances, but I don't have
13 a strong opinion on that.
14 Q. Did he provide any warnings to you
15 about the drug?
16 A. Not that I recall.
17 Q. Did he ask you about your own
18 cardiovascular health history when he prescribed the
19 drug to you?
20 A. Not that I recall.
21 Q. If he had, what would you have said?
22 A. That to the best of my knowledge, I
23 was healthy.
24 Q. Is that the same view that you have
25 today about your own CV health?

1034
1 A. Yes, it is.
2 Q. Have you had an EKG yourself?
3 A. Have I had an EKG?
4 Q. Yes.
5 A. There's been an EKG done on me.
6 Q. When?
7 A. Oh, jeez. Quite a while ago.
8 Q. Have you had one since you
9 discontinued Vioxx?
10 A. No, I have not.
11 Q. Do you know whether you have suffered
12 a silent heart attack, Dr. Kim?
13 MR. KIERNAN: Objection to form.
14 THE WITNESS: Not to my knowledge.