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NEWARK, N.J. � For close to six weeks in the Atlantic City, N.J., Vioxx trial, lead defense lawyer Diane Sullivan’s combative nature has been positively palpable. She has skirmished with the judge at least a half-dozen times in unsuccessful efforts to get information before the jury. She tried it again last Wednesday, but this time the fracas was with her co-counsel, Stephen Raber, of Washington, D.C.’s Williams & Connolly, at whom she ended up hurling a profanity. Sullivan was on her last question on re-direct of cardiologist Theodore Tyberg last Wednesday when she asked how the painkiller’s risk of heart attacks stacks up against that of other drugs in its class. Before Tyberg could answer, the plaintiffs lawyer, Christopher Seeger, objected. He said Judge Carol Higbee had repeatedly warned Sullivan to avoid the subject or any reference to a memo by two Food and Drug Administration officials that short-term Vioxx use poses no greater risk of heart attack than similar pain relievers. Higbee had ruled the memo is scientifically flawed. So Higbee excused the jury, warned Sullivan not to violate the ban again and asked her whether she wanted a Rule 702 hearing to explore the memo’s scientific reliability, which could take weeks. Before Sullivan could respond, Raber wildly gestured with his right hand for Sullivan to retreat to the defense table. “Diane, just come here,” he said. But Raber’s intervention seemed to tick off Sullivan, who went over to Raber, pointed her finger in his face and, within earshot of several reporters and lawyers, said with barely suppressed rage, “Do that again, and you’re f � out of here.” After a pause, Higbee asked the red-faced Sullivan if she was all right and whether she had anything else to say. Sullivan said no, and Higbee left the bench. The next day, Sullivan asked Higbee to lift her ban on the memo, which she claims is essential to Merck & Co.’s defense. (Higbee had not decided the motion as of press time on Friday.) Though it was outside the view of the jury, Sullivan’s outburst was the topic du jour among observing lawyers. It came a week after an Oct. 7 flare-up, when Sullivan objected to Higbee’s decision to throw out testimony by Briggs Morrison, the company’s first witness. The judge had found that Morrison had materially changed what he had been expected to say, based on his deposition. As with last Wednesday’s incident, Raber tried to get Sullivan to calm down. Sullivan’s defense colleagues, as well as plaintiffs lawyers who have tried cases against her, were surprised at what they consider to be uncharacteristic behavior for her, but add it’s understandable in light of the pressure she is under. Merck’s official reaction to Wednesday’s events was that there is no crack in the defense team. Raber “has a great capacity to let things go,” says Merck spokesman James Fitzpatrick, of Manhattan’s Hughes Hubbard Fitzpatrick. “We’re united in our defense of Merck. What it reflects is that Diane believes so strongly in this case, and she’ll do whatever it is if it’s in the best interests of this case.” And ultimately, the internecine bickering won’t affect the case outcome. “Her outbursts aren’t a jury problem yet,” says Professor Edward Ohlbaum, who runs the trial advocacy program at Temple University Beasley Law School. “In a trial like this, if it doesn’t happen in front of the jury, it doesn’t really matter. If there’s any animosity on the defense team, you have to suck it in or sublimate it while the jury’s in the room.” Lawyers on both sides attribute Sullivan’s emotional nature to her tenacity. The Dechert partner has successfully defended pharmaceutical companies and medical device makers in mass torts involving Wyeth’s diet-drug phen-fen, GlaxoSmithKline’s cholesterol drug Baycol and Baxter International Inc.’s latex gloves. “She is a fighter who truly believes in her cause,” says Christopher Placitella, a plaintiffs lawyer who has Vioxx cases before Higbee and has tried cases against Sullivan. “It’s a lot of pressure.” Pressure, indeed. Wall Street analysts estimate that Merck’s potential liability for the nation’s 6,000-plus Vioxx suits against it ranges from $4 billion to $50 billion. Just how much is riding on the litigation is evident from the dive Merck’s stock took on Oct. 7, down 98 cents, to $25.85 a share, its lowest level in a decade. Another, more immediate source of pressure is that Sullivan will have to deal with Higbee again and again, as the judge is overseeing 3,500 of the Vioxx suits. “My first thought was, ‘I don’t understand how Diane can go back in that courtroom with another 3,500 cases with this judge,’” says a lawyer who defends pharmaceutical companies in mass tort cases. Luckily for Sullivan, Higbee doesn’t hold grudges, say attorneys who have appeared before her. “This judge knows how to let it go,” says a plaintiffs lawyer. “She knows how pressure and battle fatigue can push someone over the edge.” Nevertheless, she is human. “You just make your life hard if you aggravate the judge,” says a defense lawyer. CALM BEFORE THE STORM Prior to her outburst Wednesday, Sullivan was poised, clear and organized during her direct examination of Tyberg, the Manhattan cardiologist whose role is to undercut plaintiff Frederick Humeston’s claim that Vioxx caused his nonfatal heart attack on Sept. 17, 2001. Tyberg, a low-key witness with a self-effacing sense of humor, told jurors that the Idaho postal worker’s heart attack was triggered by a phone call the night before from Gregory Lewer, Humeston’s personal physician and friend. Lewer had said that U.S. Postal Service inspectors had visited his office with questions about a knee injury that had forced the plaintiff to take a temporary disability leave. Tyberg said that Humeston’s stress upon learning that he was being investigated at work “went to his chest” and caused the heart attack. Seegar’s co-counsel, Moshe Horn of Newark and Manhattan’s Seeger Weiss, tried to poke holes in that theory. He noted that Merck lawyers had not provided Tyberg with documents from Lewer describing their phone conversation as light-hearted and one in which Lewer reassured Humeston he had nothing to worry about. What it all comes down to is how Tyberg’s testimony, or that of his predecessor on the stand, Alise Reicin, Merck vice president of clinical trials, sits with the jury. The jurors are providing some clues in their questions. One of them asked Tyberg: Following a heart attack, “do the endothelium cells regenerate after the plaque or clot is formed?” “In general, once the endothelium is scarred, it never becomes normal again,” he responded. “Once there’s a heart attack, it’s very unlikely cells go back to normal.” Plaintiffs’ lawyers took the jury inquiry to be a damages question. Defense lawyers said the existence of only one question is a sign that the jurors have made up their minds and there are few, if any, holdouts. In a change of pace by last Friday, Raber and Seeger faced off in front of the jury during Seeger’s cross-examination of Reicin’s boss, Barry Gertz, Merck executive vice president of clinical services. Gertz got in a limited amount of information about animal studies conducted by scientists in Merck’s Canadian research facility. But because they were not peer reviewed or published, Higbee did not allow Gertz to discuss the studies’ conclusions. Also on Friday, the defense put on its FDA expert, Dr. Lisa Rarick, who spent 15 years at the federal regulatory agency and now works as a drug industry consultant in reproductive medicine and regulatory affairs. Lawyers expect a few more days of testimony from Rarick and Dr. Michael Spaziano, a cardiologist and epidemiologist. When the defense rests, the lawyers will hold a charging conference, and any outstanding evidentiary issues will be addressed. Then the lawyers will tie together their stories in closing arguments, and the jury will get the case. It’s not clear whether Higbee will let all nine jurors decide the case or pick six out of the nine. Lisa Brennan is a reporter with a Recorder affiliate based in Newark, N.J.

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