ATLANTIC CITY, N.J. (AP) – Threatening to declare a mistrial, the judge hearing a product liability suit over painkiller Vioxx reprimanded manufacturer Merck & Co.’s lead lawyer Thursday for violating an order barring comments about lawyers in front of the jury.

Merck lawyer Diane Sullivan, under fire from Superior Court Judge Carol E. Higbee, later turned the tables on the plaintiff’s personal physician, attacking his credibility.

Thursday’s session began with Higbee saying Sullivan had made repeated negative references about attorneys in her opening statement to jurors Wednesday, despite pretrial instructions not to do so.

“It’s simply playing to the bias of jurors … a certain perception that there are too many lawsuits and that it’s causing society problems,” Higbee said while the jury was out of the courtroom.

In Wednesday’s opening, Sullivan said plaintiff Frederick “Mike” Humeston was “surrounded by lawyers” and later criticized their interpretation of evidence by saying, “That’s not science, that’s lawyering, lawyering, lawyering.”

Humeston, a 60-year-old postal worker from Boise, Idaho, alleges Vioxx caused him to suffer a heart attack four years ago. Humeston had been taking the blockbuster drug for about two months to relieve lingering pain from a Vietnam War shrapnel wound to his knee. His lawyers told jurors on Wednesday, when testimony began, that Merck rushed the product onto the market, ignored evidence of problems with some patients and didn’t warn doctors or users that Vioxx could increase the risk of heart attacks and strokes.

Sullivan denied those allegations, telling jurors that Merck’s witnesses would prove Vioxx had nothing to do with Humeston’s heart attack and that the company researched the drug’s effects and reported the problems when it learned of them.

Whitehouse Station, N.J.-based Merck withdrew the popular arthritis and pain treatment from the market in September 2004 after its own research showed Vioxx doubled risk of heart attack and stroke after 18 months’ use.

On Thursday, the start of testimony was delayed by Higbee’s criticism and a dispute over whether Merck could admit into evidence a key 2005 Food and Drug Administration memo. The memo stated that the best available evidence indicates cardiovascular risks are associated not just with use of Vioxx but with many other nonsteroidal anti-inflammatory drugs, including Celebrex, Bextra and older drugs like ibuprofen, naproxen and diclofenac. That group does not include acetaminophen.

The judge said it could not be admitted now but that she would reconsider later in the trial. Sullivan then requested a mistrial over the decision and Higbee refused.

Besides reiterating the warning that attorneys should not cast aspersions on other lawyers, Higbee on Thursday barred them from making any further references to Merck having pulled Vioxx from the market – because the withdrawal happened after Humeston’s heart attack and after he filed suit.

When testimony resumed, Dr. Gregory Lewer, Humeston’s physician, said under questioning by Humeston attorney Chris Seeger that if he had known of the Vioxx’s potential cardiovascular risks, he would not have prescribed it for Humeston. He blamed the heart attack on Vioxx.

On cross-examination, Lewer acknowledged that Vioxx had relieved Humeston’s pain and that all medications come with risks. But he stood by his contention that if he had had enough information about clinical trials of Vioxx, he would not have prescribed it.

Sullivan, who had told jurors a day earlier that any physician who didn’t know about a 2000 study that found heart attacks in Vioxx users “had to be living under a rock,” asked why he hadn’t seen reports of the trials in medical journals.

“The total amount of information is overwhelming. Nobody can keep up on all of it,” Lewer said.

Later, projecting a series of documents from Humeston’s medical records on a screen in the courtroom, Sullivan pointed out sections that mentioned him suffering from stress, anxiety attacks and possibly “post-Vietnam stress syndrome.” At the hospital where he was treated the night of his heart attack, a medical record – its author wasn’t listed – said he complained of “a great deal of home stress.”

The trial, one of about 2,475 Vioxx lawsuits pending in New Jersey, is the first since a Texas jury found Merck responsible for the death of a Vioxx user and ordered a $253 million award. That amount will be slashed to about $26 million because of Texas caps on punitive damages.

On the Net: http://www.merck.com

http://www.seegerweiss.com


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