Instead of a dignified legal proceeding, the latest Vioxx trial has became a street fight between Merck’s attorneys and Judge Carol Higbee on Friday.
The defense team’s frustration with the court’s rulings has been building since the week before the trial. At that time, Judge Higbee denied Merck’s motion to adjourn the trial on the ground that publicity from the $253 million Texas verdict against the company would have a prejudicial effect on the jury in New Jersey.
Merck had also 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.
Once the trial started, however, the relationship between Judge Higbee and Merck’s attorney Dianne Sullivan rapidly degenerated. Early in the trial, Judge Higbee reprimanded Ms. Sullivan and even threatened to declare a mistrial for violating an order barring disparaging remarks about plaintiff’s lawyers in front of the jury.
Once that battle had ended, Sullivan went on the attack making six different motions of her own for a mistrial claiming the court improperly allowed or failed to bar certain evidence. Judge Higbee denied each of those motions.
When the plaintiff’s attorney, Christopher Seeger, rested his case, Merck moved for a directed verdict arguing that the plaintiff had failed to make out a case against the company thereby entitling it to a dismissal of the claim in its entirety. That motion was likewise denied.
None of these skirmishes prepared anyone for the explosion that occurred yesterday, however, when Judge Higbee struck all of the testimony of Merck’s first, and key, witness.
In a shocking turn of events, the judge struck the testimony of 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 Higbee ruled that Merck had misled the court in two ways. She said Morrison had testified on matters outside his areas of expertise and the defense team had failed to give sufficient notice about the contents of his testimony. She then barred Dr. Morrison from taking the stand again.
The court admonished Sullivan; “It’s not a free-for-all. “You don’t get to just throw in anything you want into the pot. You have to inform the court and notify your adversary.”
In unusually harsh language the judge stated: “Quite frankly, I felt sick yesterday afternoon and last night when I realized how I had gotten sucked into this. I feel that I was misled repeatedly yesterday during that testimony.
It doesn’t even make me angry. It makes me sad.” 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.
Merck had opened its defense with the likable Dr. Morrison in an attempt to give Merck a less corporate image. He was there to attack the central theory of plaintiff’s case, namely 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.
Dr. Morrison testified that Merck did several animal studies to test the hypothesis. However, he conceded that he only first reviewed one set of studies in preparation for the trial itself, and that he reviewed the other set after Vioxx was put on the market.
Since Morrison had been called as a “fact” witness these revelations were troubling to the court since he was now offering opinions or expertise on matters with which he did not have direct experience.
Plaintiff’s attorney had objected throughout Morrison’s testimony, questioning the doctor’s qualifications to offer certain opinions and asking that some of his testimony be stricken from the record. Judge Higbee, however, went even further, ruling that all of Morrison’s 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."
Higbee observed that Morrison never saw the animal studies when they were conducted yet he had given the jurors the impression that he had seen the studies years ago. “If this is the key study that proves that Vioxx is safe, wouldn’t you think that the Vioxx project team would know about it?” Higbee told Merck’s attorneys. “I was told that he was involved.”
Once the damaging ruling had been made, Merck’s attorney, Ms. Sullivan, should have taken an exception and moved on since there was little else to do at that point. The law provides for appellate review of these trial rulings, it does not provide for hand-to-hand combat to settle the disagreement between counsel and the trial judge.
As Judge Higbee attempted to leave the bench, Sullivan, clearly upset and agitated, flailed her arms and loudly challenged the court’s ruling as well as its conduct of the trial. “What’s going on here is not fair,” Sullivan yelled. Higbee directed Sullivan seven times to “sit down” and further warned, in a raised voice; “Ms. Sullivan, sit down or I will have you taken out of the courtroom. Once I rule it’s over, then you can make your record to the Appellate Division.”
Outside the courtroom another of Merck’s attorneys said the company was considering whether to seek a mistrial or file an emergency appeal. "We think keeping this testimony out really strikes at the fundamental fairness of the proceedings."
Following lunch, Sullivan did move for a mistrial, which Higbee denied. The judge also denied Sullivan’s request to delay the ruling while the company filed an emergency appeal.
While the court acknowledged the ruling would hurt Merck’s defense, Higbee stated: “There’s more prejudice to Mr. Humeston. I really don’t think I have any other option at this point other than to strike the testimony.”
The court then instructed the jury to disregard Morrison’s testimony. “You should not use his testimony in your deliberations any or your thought processes. You should not consider why.”
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.
After the ruling Merck’s general counsel, Kenneth Frazier, released a statement that said the ruling “goes to the heart of the company’s defense of this case and effectively denies Merck its fundamental right to a fair trial. We will continue to defend these cases and consider this further proof that the plaintiffs know the science does not support their claims.”
Although the trial will now continue, the calm has been broken and it is unlikely to return. An uneasy truce, at best, will prevail between Judge Higbee and Ms. Sullivan until the verdict is rendered. The court may also be considering sanctions against Sullivan for her conduct.
There is also no guarantee that the type of fireworks that occurred yesterday will not flare up again if Merck is stung by additional unfavorable rulings in this “do or die” trial.