Judge Denies Mistrial in N.J. Vioxx Case -- Again

ATLANTIC CITY, N.J. – A judge Monday for a fifth time rejected a motion by lawyers for Merck & Co. Inc. (MRK) to declare a mistrial in a trial in which a man sued the company, claiming painkiller Vioxx (search) caused his 2001 heart attack.

Merck's attorneys, in their latest attempt to have a mistrial declared, based the motion on a witness failing to follow instructions from the judge about not mentioning during testimony that Vioxx had been pulled from the market.

Following opening arguments, during which lawyers did address last September's withdrawal of Vioxx from the market, New Jersey Superior Court Judge Carol Higbee ruled that testimony referring to the withdrawal would not be allowed.

In making her ruling on the mistrial motion, however, Higbee said the mention last week by a witness for the plaintiff was not enough to cause a mistrial.

"There is absolutely no chance that these jurors do not know that Vioxx was taken off the market," Higbee told attorneys for both sides. "There is no reason for a mistrial."

In the second Vioxx case to go to trial, Frederick "Mike" Humeston accused Merck of long hiding the risks of Vioxx in an effort to preserve sales of its multibillion-dollar drug — a contention expected to resurface in thousands of pending Vioxx lawsuits.

Merck insists it pulled the popular arthritis medicine from the market as soon as it had definitive evidence that long-term use doubled the risk of heart attack and stroke. Merck is also expected to argue that Humeston had not taken the drug long enough to be vulnerable to those increased risks.

Humeston's wife, Mary, took the stand to testify about the decline in her husband's health and quality of life following the heart attack.

An emotional Mary Humeston, who had to pause several times to compose herself, told the court that her formerly strong, vibrant husband had become depressed, weak and easily fatigued following his heart attack.

"He focused on his mortality," Mrs Humeston said. "That's the real hard thing, because we expected to grow old together."

Under cross examination from Merck attorney Christy Jones, Mary Humeston admitted she did not have detailed knowledge of her husband's medication prior to the attack.

"You didn't know what he took or when it took it," Jones asked Mary Humeston.

"I did know that he took Vioxx, because it worked."

Humeston, 60, was taking Vioxx to treat knee pain from an old war wound.

A spokesman for the defense, Jim Fitzpatrick, said the rash of mistrial motions was not an indication the Merck side felt the trial has been unfair.

Each of the motions were filed to address specific aspects of the trial, Fitzpatrick noted, and did not reflect an unhappiness with the trial as a whole.

Court adjourned early Monday afternoon and will be closed Tuesday for the Jewish New Year. Attorneys for Humeston are planning to wrap up their case when court resumes Wednesday. Merck is expected to begin its defense Thursday with Briggs Morrison, vice president of Merck Research Labs, as its first witness.

The trial is being closely watched after Merck's defeat last month in Texas in the first Vioxx lawsuit to go to trial.

A Texas jury in August found Merck negligent in the death of a man who died of heart arrhythmia (search) after taking Vioxx and awarded $253 million to his widow. Merck has said it would appeal that verdict.