Wednesday, January 24, 2007

Merck - Vioxx: order in the court!

Merck's lead attorney at a New Jersey trial over its Vioxx painkiller acted unethically and unprofessionally in court yesterday during her opening statements, the judge said.

Attorney Diane Sullivan (pic) repeatedly violated pre-trial orders on what statements were allowed during the first phase of a trial over whether Vioxx caused the heart attacks of two men, Superior Court Judge Carol Higbee said today outside the jury's presence.

Sullivan's violations included talking about Merck's cancer research and noting the home states of the men, Higbee said.

``It is unprofessional, it is unethical, and it is contemptuous of this court,'' Higbee said in New Jersey state court in Atlantic City. ``She deliberately violated my orders on repeated occasions. I am not going to deal with this kind of unprofessionalism. I am not going to let it taint this trial.''

Merck, the No. 4 U.S. drugmaker, withdrew Vioxx in 2004 when a study showed it raised the risk of heart attacks. Merck faces 27,000 Vioxx suits and has won eight of 12 cases. Higbee overturned a ninth victory, involving Frederick Humeston, whose case is being reheard in this trial. Jurors heard their first day of testimony in the case today.

Higbee repeatedly clashed with Sullivan at Humeston's first trial, which ended in November 2005. The judge admonished Sullivan today for showing jurors a photograph during opening statements of plaintiff's lawyer Mark Lanier, a different image than the one the judge had approved.

``The slide was offered, substantially changed,'' Higbee said. ``I believe that's a deliberate attempt to deceive plaintiff's counsel and the court.''

That action was ``simply reprehensible,'' said Higbee, who has presided over four Vioxx trials. When Sullivan tried to interrupt, Higbee cut her off.

``I'm not going to listen to you,'' the judge said. ``You can defend yourself at the appropriate time and place.''

Higbee didn't elaborate. Sullivan, a lawyer at Dechert LLP in Princeton, New Jersey, declined to comment.

``The judge has made her views clear. We've heard her views and we're going to move forward,'' said Merck attorney Hope Freiwald, also of Dechert. ``We're going to represent Merck zealously, as we always do.''

Higbee said Sullivan yesterday dropped her voice near the jury box and impermissibly discussed the possibility of Merck selling Vioxx again. Higbee said she couldn't hear the remark, which the court reporter transcribed.

Jurors heard testimony today from the plaintiffs' first witness, Merck executive David Anstice. Lanier questioned Anstice about the marketing of Vioxx in an effort to support his claim that Merck hid the drug's risks, intimidated doctors and trained its sale staff to dodge questions from physicians about the drug.

Before the jury was allowed in the courtroom, Higbee noted that Sullivan also violated her orders at the first Humeston trial. At one point during that case, Higbee struck testimony from a Merck scientist, prompting an angry outburst by Sullivan. She repeatedly tried to shout over Higbee as the judge stood to leave the courtroom.

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