In a shocking turn of events, the trial judge in the second Vioxx trial now taking place in Superior Court, Atlantic County, New Jersey, has stricken the testimony of Merck’s first (and key) witness, Briggs Morrison, a vice president for Merck Research Labs, because it went "way beyond" his role as a purely “fact” witness as promised by Merck’s defense lawyers.
Judge Carol Higbee said that the testimony offered by Morrison had made her fell “sick” because "I realized how I have got sucked into this. I feel that I was misled during the testimony."
The judge ordered that all of Morrison’s testimony be ignored by the jury and cautioned defense counsel that if Merck wants to use him as a witness at all after this point it would only be by relying on his pre-trial videotaped deposition.
Higbee did not mince words as she sternly admonished Merck’s attorneys for what the judge clearly regarded as misleading behavior on their part. Higbee said Morrison’s testimony about animal testing and its implications regarding the safety of Vioxx was impermissible as he was never claimed to be testifying as an expert on that topic.
Although Merck’s trial attorney, Diane Sullivan, excepted to Higbee’s ruling, she carried her protest beyond the bounds of proper advocacy and was repeatedly warned by the judge to sit down and stop speaking. Finally, the judge threatened to have Sullivan removed from the courtroom if she continued to voice her disapproval of the court’s ruling.
Merck has already suffered a series of unfavorable rulings in this trial. Higbee first denied Merck’s motion to adjourn the trial. Once the trial started, several mistrial motions have been denied as has Merck’s motion for a directed verdict against the plaintiff.
Merck has used every procedural tool possible to avoid taking a verdict in what could be a “make or break” case for the pharmaceutical giant. It even tried to change tactics by advancing a defense built around the idea that Merck obviously believed Vioxx was safe since many of its top scientists took it. So did the marketing chief, his mother, and even the CEO’s wife.
Judge Higbee, however, would have none of that and ruled such testimony inadmissible because employees’ personal use of Vioxx actually proves nothing about the drug’s safety.
What occurred today, however, is quite serious since it shows Merck’s high powered defense team is capable of making what many trial attorneys we spoke with called “a rookie mistake.”
All litigation lawyers are well aware of the fact that extensive pre-trial discovery takes place in every case in order for there to be no surprises or ambushes and so that both sides are equally prepared to represent their clients as completely as possible at trial.
When discovery is improperly withheld or one side attempts to gain an advantage by changing the position it advanced during discovery, bad things can happen. Courts frown on such tactics and do not appreciate being misled.
Rulings which preclude the admission of evidence or strike witnesses’ testimony because of this type of conduct can severely damage a litigant’s case both by limiting the proof and, most importantly, in the eyes of the jury. Open battles with a judge rarely help an attorney’s image or his or her client’s chances with the jury.
Merck’s tactical decision to forego settlement discussions and to forge ahead with its “all or nothing” defense of each and every Vioxx case required its attorneys to be at the top of their game at all times. This disastrous misstep on their part cannot help but to cause great distress in the Merck camp tonight.
Clearly, any chance Merck has of extricating itself from the Vioxx debacle is rapidly slipping away. Today’s calamity has only made the slope more slippery.