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By the time defense lawyer Stephen Raber cross-examined the plaintiff’s star expert witness last Tuesday at the Vioxx trial in Atlantic City, N.J., jurors had heard two days of testimony on avoiding heart attacks and the dangers of secondhand smoke. Until then, it seemed, pharmacologist Benedict Lucchesi, a professor at the University of Michigan Medical School, had scored points with the jury of seven women and three men. He had made frequent eye contact with them, and two jurors had taken copious notes. “Every member of the jury took something away from Professor Lucchesi’s first two days of testimony that they can use in their personal lives,” says Samuel Davis, a plaintiffs lawyer who has 83 Vioxx cases pending. “He connected with them. … He was a combination of their first science teacher and Dr. Phil.” Lucchesi had even broken down once, on Sept. 16, while answering a question about an internal Feb. 25, 1997, e-mail. He said he inferred from it that Merck & Co. scientists recognized Vioxx’s potential cardiac risks before it went on the market. The company did nothing, he said, because it “put profit before life.” And some of those Merck scientists, Lucchesi testified, had been his students. Outside the courtroom, Merck lawyer James Fitzpatrick said Lucchesi was “completely misinterpreting” the e-mail. Writing to other company scientists, Merck scientist Briggs Montgomery urged — successfully, it turned out — to include in the drug’s clinical trial patients on low-dose aspirin. Lucchesi saw that as a way of diluting the results that linked heart problems with Vioxx. “I was surprised he was allowed to testify about his personal reaction,” says a defense lawyer not in the case. So Raber had his work cut out for him. But under harsh cross-examination, Lucchesi was forgetful at points, handing the defense its first discernable coup. In no time, Raber grew frustrated with Lucchesi’s responses. At one point, he asked Lucchesi to give “yes” or “no” answers and got instead, “Where are you going with this?” Raber asked Lucchesi if he could “limit gratuitous statements.” Superior Judge Carol Higbee, who is presiding over the state’s 2,400 Vioxx cases, admonished Raber for being overly argumentative and talking too loudly. Raber asked Lucchesi to apologize to Montgomery, the Merck scientist implicated in Lucchesi’s comments on Sept. 16. Lucchesi refused, and Higbee asked Raber to refrain from “stares and glares.” She also instructed the jury to “disregard Raber’s facial expressions.” Soon, the Williams & Connolly litigator struck a new chord, confronting Lucchesi with statements he had made in a deposition in the case to the effect that Vioxx did not hurt many people, comments Lucchesi had forgotten. Then Raber confronted him with his statements that four patients in one of his studies had heart attacks after taking Vioxx, prompting Lucchesi to respond that they actually had suffered from blood clots. The 17 Merck lawyers sitting in the courtroom broke out into a show of relief on their faces, smiling and looking at each other. It was the first breakthrough for the Whitehouse Station, N.J., drug maker, and it likely gave Merck material for its expected application to dismiss the case at the end of the plaintiff’s proofs. “They’ll portray Lucchesi as wrong, as the plaintiff’s star scientist who couldn’t even remember what he said in earlier testimony,” says a plaintiffs lawyer who asked not to be named. Vioxx plaintiffs lawyers in the 5,000-plus other cases nationwide who were in the courtroom for Raber’s cross-examination say it was impossible to know whether it undercut Lucchesi’s credibility. “It could go either way,” says a Bergen County plaintiffs lawyer who asked for anonymity. Davis, of Teaneck, N.J.’s Davis Saperstein & Salomon, believes Raber’s cross did little, if any, damage to the plaintiff’s case. “When you have someone who has come as close to figuring out God’s plan for circulatory homeostasis as Benedict Lucchesi has, and you derail him with documents, it could be viewed as demeaning,” says Davis. HEARING FROM THE JURY As is Higbee’s usual practice, she is letting the jurors ask questions. The state Supreme Court gave judges discretion to allow juror questioning in 2002, when it adopted R. 1:8-8. While lawyers may wish to do the questioning themselves, they can use the jurors’ questions to get a sense of the panel’s feel for the evidence. Before Lucchesi stepped down Tuesday, jurors presented him with at least three questions: How do Vioxx and prostacyclin, a substance produced by the body that prevents blood clots, interact? How would Vioxx affect the body’s ability to interact with clot-busting drugs given to stroke victims? And does exposure to secondhand smoke pose the same level of risk as Vioxx? “Sounds to me like the jurors don’t get the science of the case,” says a plaintiffs lawyer who was in court. Though Lucchesi did not testify during the first Vioxx trial against Merck — in which an Angleton, Texas, jury last month awarded the widow of a Wal-Mart produce manager $253 million — he’s expected to become a regular witness if the plaintiff wins. “Most cases have exposure issues,” says Davis. “If there’s a plaintiff’s verdict in Humeston, it throws the doors open wider to claims on the horizon.” Plaintiffs lawyers say Lucchesi will make a good witness in a wide range of Vioxx cases because he is one of the few scientists to have developed scientific theories that explain single-dose and intermittent-dose Vioxx cases. Plaintiff Frederick Humeston took Vioxx for only a couple of months before suffering a debilitating heart attack. Merck attorneys claim, based on a company-sponsored clinical trial, that only those who took Vioxx daily for more than 18 months show an increased risk of heart attack and stroke. About half the 5,000 Vioxx cases in state and federal courts nationwide are before Higbee, who was designated to handle all Vioxx litigation by the state Supreme Court in 2003, 16 months before Merck withdrew the pain killer over increased risk of a heart attack or stroke. AN EXERCISE IN CONTROL Higbee has kept a calm demeanor during the frequent bouts of lawyer acrimony. She isn’t rattled by lawyer demands for sidebar time to iron out disputes over documents and outstanding evidentiary issues. In fact, she allowed sidebars every 15 minutes or so last Tuesday — a particularly contentious day, dominated in the mid-afternoon by procedural issues and house cleaning. During a lunchtime interview in her chambers last Tuesday, Higbee provided a glimpse of what it is like being a mass tort judge. She regularly communicates with U.S. District Judge Eldon Fallon of the Eastern District of Louisiana, who is overseeing the federal multidistrict Vioxx litigation and has developed a template for the first federal Vioxx trials. Higbee says she and Fallon have posted each other’s judiciary’s Web sites on their own. Higbee also chats with Texas Judge Ben Hardin, who presided over the Angleton trial, and Alabama Judge John Rochester, who is managing Vioxx cases in his state. Higbee says she met with Fallon, Hardin and Rochester on May 22 and 23 in New Orleans. “We talked about co-existing, not getting in each other’s way,” Higbee says. But more immediate is the friction in her courtroom. “The tension between the lawyers in the courtroom is palpable,” says a defense lawyer who has been following the case. “There’s a lot of pressure on both sides. Nobody wants to make a misstep. This is not just about Mike Humeston’s case; it’s about 100,000 other current or potential plaintiffs.”

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