Merck Lawyer Fights Again

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Judge again butts heads with lead Merck attorney
Lawyer then lashes out at fellow defense counsel
Thursday, October 20, 2005
BY GEORGE E. JORDANStar-Ledger Staff
For the third time since the start of the Vioxx trial, the judge yesterday admonished Merck's lead attorney, this time for mentioning a topic the judge had specifically ruled off-limits.
The dust-up came as lawyer Diane Sullivan was questioning one of Merck's expert witnesses, cardiologist Theodore Tyberg. At one point, she asked Tyberg if there were studies that suggested Vioxx did not create substantially greater cardiac risks than similar painkillers.
Before Tyberg could answer, however, Superior Court Judge Carol Higbee called for a break so the jury could be led out of the courtroom. Higbee then warned Sullivan to drop that line of questioning because it touched on an issue the judge earlier ruled was not supported by science.
"Don't do it again, Ms. Sullivan," Higbee said in a stern voice. "Don't do it again, or we're going to have a problem."
At that point, another member of Merck's legal team, Stephen Raber, gestured for Sullivan to return to the defense table. There followed a nasty exchange between the co-counsels.
"You do that again and you're (expletive) out of here," Sullivan said to Raber in a voice audible to others in the courtroom.
The spat came after Higbee earlier in the day twice warned Moshe Horn, a lawyer for plantiff Frederick "Mike" Humeston, to lower his voice during cross-examination of Tyberg.
The heated exchanges highlighted the tensions just below the surface of the high-stakes personal-injury trial as it winds toward a close after five weeks of testimony. Lawyers on both sides said the jury could get the case as soon as next week.
Higbee and Sullivan first butted heads during opening arguments, and again when Sullivan loudly objected to Higbee's decision to strike the testimony of Merck's lead witness. In the second tiff, Higbee threatened to have the lawyer removed from the Atlantic City courtroom.
After the trial recessed yesterday, Jim Fitzpatrick, a spokesman for Merck's legal team, gave a sheepish smile when asked about Sullivan's language.

Merck Takes the Stand

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Merck research: Studies proved Vioxx safe
BY BONNIE PFISTER ASSOCIATED PRESS WRITER
ATLANTIC CITY (AP) -- Pharmaceutical giant Merck & Co. did several studies that proved the safety of its now-withdrawn painkiller Vioxx, a top executive told jurors this morning.
Dr. Barry Gertz, executive vice president of clinical pharmacology at Merck Research Laboratories, said the Whitehouse Station-based firm did three studies on dogs and one on rabbits to determine whether Vioxx caused a reduction in prostacyclin, a naturally occurring chemical in the body that helps prevents blood clots.
Frederick "Mike" Humeston, 60, an Idaho postal worker, blames his intermittent use of Vioxx over two months for his September 2001 heart attack. Merck says Humeston's job stress and health risks, not Vioxx, caused his heart attack.
Humeston, 60, of Boise, is one of about 6,500 former Vioxx users suing Merck over the drug, which the company pulled off the market in September 2004 after long-term use was linked to increased risk of heart attacks and strokes.
An internal Merck study in 1996 suggested Vioxx could cause a reduction in prostacyclin in the urine. Humeston's lawyers have pointed to that study as proof that Merck knew its blockbuster pain reliever could lead to heart attacks.
But testimony from Gertz, who appeared for the company, bolstered Merck's argument that the company did subsequent studies to see if Vioxx reduced prostacyclin and could cause heart attacks, and found that it did not.
Humeston lawyer Chris Seeger suggested in his cross-examination that drugs could have different effects on animals than on humans.
"Veterinarians didn't prescribe Vioxx, did they?" Seeger asked.
"No," Gertz answered.
In the first Vioxx trial in August, a Texas jury found Merck liable in a Vioxx user's death. Damages there will be cut to about one-tenth of the jury's $253 million award due to that state's caps on punitive damages.
Merck shares rose 22 cents to $27.14 in morning trading on the New York Stock Exchange