Judge Warns: Vioxx Mistrial Possible

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A judge Thursday admonished a lawyer for Merck & Co. Inc. (MRK) for violating her earlier instructions to avoid negative comments about attorneys and warned of "repercussions" — including a possible mistrial — if such conduct continued.

Superior Court Judge Carol Higbee, who is overseeing a Vioxx (search) product liability (search) trial in Atlantic City that got underway this week, said that references by lawyers about each other risked prejudicing the jury.

"It is simply playing to the bias of jurors. There is a certain perception that there are too many lawsuits, and t

lawyer Diane Sullivan made several references to attorneys, including a comment that plaintiff Frederick Humeston was "surrounded" by lawyers.

Humeston, a 60-year-old postal worker and Vietnam War veteran, is suing Merck, blaming the drug company's blockbuster painkiller Vioxx for his 2001 heart attack.

The drug company is hoping for a victory after losing the first Vioxx trial in Texas last month. Merck faces a slew of lawsuits following its voluntary withdrawal of Vioxx from the market in September 2004. The company withdrew the drug after its research showed increased risk of heart attack and stroke in some patients who took Vioxx for at least 18 months.

The judge said she had not decided what the consequences would be if lawyers continued to ignore her instructions but said she could declare a mistrial.

"Don't do it; if you do it, you will regret it," she warned the attorneys.

When testimony resumed Thursday, Humeston's family doctor said he believed that Vioxx had contributed to his patient's heart attack.

Dr. Gregory Lewer also said Merck did not give doctors the opportunity to review the heart risks associated with the drug.

"I did not have the information I wish I had had at the time," he said. "I did not find anything about cardiovascular risk in there" he said, referring to drug information provided with Vioxx.

On cross examination, Sullivan asked Lewer why his medical records did not reflect his concerns about the drug's safety. Lewer replied that his notes may not have included his concerns in those specific words, but it was "implicit."

Sullivan also asked Lewer why he continued to prescribe Vioxx after becoming concerned about its safety.

"I did not want to jump to conclusions right away," he said.