ATLANTIC CITY, N.J. – The judge in the second Vioxx (search) product liability trial delivered a stunning blow to Merck & Co. (MRK) Friday when she struck the testimony of its first defense witness from the record.
With the jury outside, Superior Court Judge Carol Higbee said she felt misled and sickened upon rereading the transcript of Thursday's testimony by a Merck researcher who said studies by the company in the late 1990s showed the pain reliever would not cause heart damage.
Higbee struck the testimony of Merck researcher Dr. Briggs Morrison from the record because she said he was not an expert on the studies he had told the jury about Thursday, nor did Merck give the court sufficient notice about what he would discuss.
"I felt sick last night, and I realized how I got sucked into this. I feel that the court was misled repeatedly with this testimony," Higbee told attorneys Friday morning.
Morrison was Merck's opening witness in the three-week trial over whether Vioxx caused the 2001 heart attack of Boise, Idaho postal worker Frederick "Mike" Humeston. Merck in August lost its first product liability case in Texas over the death of another Vioxx user, and 5,000 similar lawsuits are pending.
Merck voluntarily pulled the drug from the market a year ago after its own study found that more than 18 months of Vioxx use could double the risk of heart attack and stroke.
Higbee said the Merck researcher's testimony differed greatly from what he had said in a February deposition about internal studies to determine whether Vioxx posed heart risks.
Morrison on Thursday told the jury that studies Merck had conducted on dogs, rabbits and elderly people determined Vioxx did not trigger heart problems. Humeston's lawyers argued, and Higbee agreed, that Morrison failed to mention those studies in the deposition.
Morrison on Thursday conceded that he only learned the details of the rabbit study in preparing for this trial.
The judge's action went beyond the request Humeston's lawyers made Thursday to strike only Morrison's testimony about some animal studies.
Higbee's rebuke over Merck's actions — which she said left her more sad than angry — reached a noisy crescendo as she signaled a break following her ruling. Merck attorney Diane Sullivan repeatedly tried to add something to the record.
As Sullivan continued loudly, Higbee, standing to leave the bench, shouted, "Miss Sullivan, sit down and be quiet. Sit down or I will have you taken out of the courtroom.
"I gave you an opportunity to argue. I listened to you yesterday for hours. Once I ruled, it's over and then you can make your record to the appellate division," Higbee said.
After a break, Merck lawyers asked the judge to reconsider her ruling or to declare a mistrial. She denied both motions, and the jury returned to the courtroom for the first time in more than 24 hours. Higbee then instructed them to disregard Morrison's testimony, although she earlier told the lawyers the jurors could consider his February deposition.
Merck general counsel Kenneth Frazier said in a prepared statement that the ruling denies Merck its fundamental right to a fair trial.