Judge threatens mistrial in Vioxx case

Published in the Asbury Park Press 09/16/05
THE ASSOCIATED PRESS

ATLANTIC CITY — The judge hearing a product liability lawsuit against Merck & Co., the manufacturer of painkiller Vioxx, reprimanded the company's lead lawyer Thursday for violating pretrial instructions barring comments about lawyers in front of the jury.

Threatening to declare a mistrial, Superior Court Judge Carol E. Higbee said Merck lawyer Diane Sullivan had made repeated negative references about attorneys in her opening statement to jurors Wednesday, despite being told beforehand not to do so.

"It's simply playing to the bias of jurors . . . a certain perception that there are too many lawsuits and that it's causing society problems," Higbee said while the jury was out of the courtroom.

On Wednesday, Sullivan made reference to plaintiff Frederick "Mike" Humeston being "surrounded by lawyers" and later criticized their interpretation of evidence by saying, "That's not science, that's lawyering."

Humeston, a 60-year-old postal worker from Boise, Idaho, alleges Vioxx caused him to suffer a heart attack four years ago. Humeston had been taking the drug for about two months to relieve lingering pain from a Vietnam War shrapnel wound to his knee.

His lawyers told jurors on Wednesday, when testimony began, that Merck rushed the product onto the market, ignored evidence of problems with some patients and didn't warn doctors or users that Vioxx could increase the risk of heart attacks and strokes.

Sullivan denied those allegations, telling jurors that Merck's witnesses would prove Vioxx had nothing to do with Humeston's heart attack and the company researched the drug's effects and reported the problems when it found out about them.

Whitehouse Station-based Merck withdrew Vioxx in September 2004 after its research showed the drug doubled risk of heart attack and stroke after 18 months' use.

On Thursday, the start of testimony was delayed by Higbee's criticism and a dispute over whether Merck would be allowed to admit into evidence a Food and Drug Administration advisory committee memo. The judge ruled it cannot be admitted.

Higbee on Thursday barred the lawyers from making any further references to Merck having pulled Vioxx from the market; it was raised in opening statements. Higbee said it was not relevant because the withdrawal happened after Humeston's heart attack and after he filed suit.

When testimony resumed Thursday, Dr. Gregory Lewer, Humeston's physician, said if he had known of the potential cardiovascular risks posed by Vioxx, he would never have prescribed it for Humeston.