Judge Bars Testimony of Merck Witness

ATLANTIC CITY, N.J. -- In what could be a crucial setback for Merck & Co. in the second trial over its Vioxx painkiller, a state court judge struck the entire testimony of the company's first witness, delivering a blistering lecture to Merck lawyers that degenerated into a shouting match.

Judge Carol Higbee ruled on Friday that Merck misled the court in two ways. She said Merck's company physician, Briggs Morrison, testified on matters outside his areas of expertise. And she excoriated Merck's legal team for failing to give sufficient notice about his testimony's contents. The judge barred Dr. Morrison from taking the stand again in the trial.

In an emotional 20-minute oral decision with the jury outside, Judge Higbee said she was "sick" over Merck's actions and Dr. Morrison's testimony Thursday. "I feel that I was misled repeatedly yesterday during that testimony," she said.

Jumping to Defend

As the judge stood up to leave the bench, lawyers for Merck jumped up and demanded that they be allowed to add statements for the record. The judge denied the request and Merck defense attorney Diane Sullivan began arguing that the decision was unfair, jabbing her finger toward the judge, who yelled seven times for her to sit down and then screamed that Ms. Sullivan risked being removed from court.

The highly charged proceedings mark a painful setback for Merck, although the heated exchange could strengthen any appeal of the ultimate verdict that Merck might file. Merck had hoped this case would help it bounce back from a damaging loss in Texas in August. Jurors in that case, who awarded $253.4 million to the widow of a 59-year-old triathlete who took Vioxx, said Merck executives and lawyers appeared stiff and did a poor job explaining the science involved.

Merck, which has headquarters in Whitehouse Station, N.J., voluntarily pulled Vioxx from the market last year after a study linked the drug to an increased risk of heart attacks and strokes in patients taking it for 18 months.

Roughly 5,000 Vioxx cases have been filed against Merck -- about half of them in New Jersey -- and many of those have been consolidated in Judge Higbee's courtroom.

Treatment for Knee

In the New Jersey case, Frederick "Mike" Humeston, a 60-year-old postal worker from Boise, Idaho, alleges Vioxx caused his 2001 heart attack after the Vietnam veteran took the painkiller for two months for knee pain.

Merck was counting on the affable Dr. Morrison to present a warmer, human face for the company. In his testimony, which started Thursday, the company sought immediately to dispel the plaintiff's central argument: that Merck had information from a 1997 study that raised questions about the role Vioxx might play in blood clotting, which can lead to heart attacks and strokes.

In plain language, Dr. Morrison testified that Merck did several animal studies to test the hypothesis. However, he conceded that he first reviewed one set of studies only in preparation for the trial, and that he reviewed the other set after Vioxx had been launched.

That became a problem for the judge because Dr. Morrison was called to testify as a so-called fact witness, which limited his ability to offer opinions or expertise on matters with which he did not have direct experience. Mr. Humeston's attorney, Christopher Seeger, entered multiple objections throughout Dr. Morrison's testimony, questioning the doctor's qualifications to offer certain opinions and asking that some of his testimony be struck from the record.

Judge Higbee went further, ruling that all of his testimony be disregarded. "Not only did he not do [the studies], he had never seen them until 2005," the judge said. The testimony "strikes at the very heart of the plaintiff's case; it's critical," she added.

Worsening Relationship

The exchange has worsened an already rocky relationship between Judge Higbee and Merck's Ms. Sullivan. Early in the trial, Judge Higbee, a former plaintiff's attorney, reprimanded Ms. Sullivan, and threatened to declare a mistrial, for violating an order barring comments about plaintiff's lawyers in front of the jury. Merck attorneys, for their part, have filed six different motions seeking a mistrial, alleging the judge improperly allowed or failed to bar certain evidence. Judge Higbee has denied each one.

Following Friday's exchange, Merck defense lawyer Ted Mayer of Hughes Hubbard LLP said he believed Ms. Sullivan acted appropriately. "She felt strongly this was crucial testimony," Mr. Mayer said.

The company later issued a statement saying that forbidding a top company scientist from testifying "effectively denies Merck its fundamental right to a fair trial."