Judge strikes key Merck witness from Vioxx trial

ATLANTIC CITY, New Jersey (AP) - The judge in the second Vioxx product-liability trial delivered a stunning blow to Merck & Co. when she barred the testimony of its first defense witness from the record. 

With the jury out of the courtroom, 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 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 on Friday. 

Morrison was Merck's opening witness in the three-week trial over whether Vioxx caused the 2001 heart attack of Idaho postal worker Frederick "Mike'' Humeston. Merck in August lost its first multimillion dollar product liability case in Texas over the death of another Vioxx user, and 5,000 similar lawsuits are pending in the United States. 

Other lawsuits have been filed in Canada, Europe, Brazil, Australia and Israel. 

Merck voluntarily pulled the drug from the market a year ago after a study found extended Vioxx use could double the risk of heart attack and stroke. 

Higbee said Morrison's testimony differed greatly from what he had said in a February deposition about internal studies to determine whether Vioxx posed heart risks. 

On Thursday, Morrison 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 also said he reviewed most of those studies as he prepared for this trial and had not been directly involved in them in the months before the company launched Vioxx in May 1999. 

Higbee's rebuke over Merck's actions 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 rule, it's over,'' Higbee said. 

After a break, Sullivan asked the judge to reconsider the ruling, allow time for Merck to appeal to a higher court, or declare a mistrial. 

Higbee denied those motions, making it the sixth time she has refused a Merck request for a mistrial. 

While Higbee acknowledged that disallowing Morrison could be harmful to Merck, she said his inappropriate testimony would be even more harmful to Humeston. 

"You can certainly go to the appellate division at the end of the day,'' Higbee said.  

Merck spokesman Ted Mayer said later that such a move was being considered, but a decision on whether to proceed would not be made on Friday. 

Observers in the courtroom Friday expressed shock over the shouting match between Higbee and Sullivan. 

Samuel L. Davis, a lawyer for several other Vioxx plaintiffs, said he did not believe Sullivan's outburst was spontaneous. 

"When a very seasoned, experienced lawyer gets in the judge's face, that (is) calculated to draw the judge into a fight. Then that fight serves as the basis for a recusal. Or a mistrial,'' Davis said. 

"This judge did not bite.'' 

Merck shares fell 98 cents to $25.85 in regular trading on the New York Stock Exchange, then fell 35 cents in after-hours trading. - AP 

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