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If Merck & Co. loses the Atlantic City Vioxx trial, its lawyers may look back on last Friday as the day disaster struck. It was the day Superior Court Judge Carol Higbee struck the trial testimony of company vice president and medical doctor Briggs Morrison, finding that he “materially changed” what he had been expected to say based upon his deposition. Higbee, ruling in open court with the jury not present, said she had been duped by the defense into allowing Morrison to discredit the plaintiff’s expert, pharmacologist Benedict Lucchese, who had theorized that Merck’s pain reliever Vioxx reduces prostacyclin, an enzyme that prevents blood clotting, and as a result increases clotting risks. Morrison said that Lucchese, a University of Michigan pharmacologist, had mistakenly implied that Merck had never done animal studies to understand better the relationship between Vioxx and prostacyclin, when in fact the company had conducted such studies on rabbits in 2001 and found that Vioxx had no bearing on prostacyclin levels. That finding applied to humans as well, Morrison said. Plaintiff’s lawyer Christopher Seeger objected, saying Morrison was not meant to be a pharmacology expert but a witness who would put a human face on Merck, as he had done in his deposition testimony. “They took a witness, prepped him for trial, with no training in pharmacology, and sent him into court to give an expert opinion,” Seeger told reporters Thursday. On Friday, Higbee agreed, saying that she had spent eight hours reading Morrison’s testimony and that she was “saddened” and “sickened” that she had overruled Seeger’s objections during Morrison’s testimony Thursday. In striking the testimony, Higbee cited the 2001 decision in McKenney v. Jersey City Medical Center, 167 N.J. 359, in which the state Supreme Court said the changing of testimony between deposition and trial, without notice, is not permitted under New Jersey court rules. After Higbee ruled, Merck lead counsel Diane Sullivan tried to talk over the judge. When Sullivan continued to raise her voice despite the judge’s repeated requests that she be seated, Higbee calmly got up and ended court for the day. Merck spokesman Theodore Mayer of Hughes Hubbard & Reed in New York said Friday afternoon that defense lawyers would ask Higbee to reconsider her decision. “This testimony goes right to the heart of the plaintiff’s theory of the case,” he said. Predictably, plaintiffs’ lawyers were exuberant. “I believe this ruling severely hampers the defendant’s case and is a major bump in the road for Merck,” says plaintiffs’ lawyer Christopher Placitella of Red Bank, N.J.’s Cohen Placitella & Roth, who has helped Seeger prepare witnesses in the case. “I believe the judge correctly applied the Supreme Court precedent.” Defense lawyers say Morrison’s trial testimony could have been effectively undercut by plaintiffs’ lawyers on cross-examination. “This goes right to the fundamental fairness of the proceeding,” says a mass tort lawyer. Morrison “is a senior scientist in the company. It’s a decision of critical importance to the case.” Monday’s Columbus Day holiday gave Merck some extra time to regroup after Friday’s setback. Merck spokesman Ted Mayer said Monday that while a midtrial appeal to a higher court is being contemplated, no such action has been filed. GETTING SCIENCE ACROSS TO JURORS The episode occurred just two days into Merck’s defense, which differs from the one presented in Angleton, Texas. There, the company focused on scientific studies that showed Vioxx posed little or no heart-related risk until a 2004 study turned up a problem for patients who took it for 18 months or more. The Texas jury awarded $253 million to the estate of a Vioxx user who died of a heart attack. This time, Merck is telling jurors that everything it did was approved by the Food and Drug Administration. “Merck’s biggest problem in Texas was explaining its scientific position to the jury,” says a mass-tort defense lawyer. “And the plaintiffs face the same hurdle here: the toughest part is getting the science across to the jurors.” The plaintiffs, meanwhile, are focusing not only on science but on Merck’s marketing, telling jurors that the company put profits over health and hid the dangers of the painkiller. A handful of mass tort lawyers on both sides of the aisle say plaintiff’s lawyers Seeger and David Buchanan of Seeger Weiss in Newark held the jurors’ attention throughout their case. The observers say the team got the message across that short-term Vioxx use creates a cardiovascular risk, that it was a substantial contributing factor to postal worker Frederick Humeston’s nonfatal heart attack on Sept. 18, 2001, and that Merck failed to warn the public about the painkiller’s heart-related risks. Seeger and Buchanan rested their case last Wednesday with testimony from three videotaped witnesses, one former and two current Merck employees, who called the company’s credibility into question. Seeger’s last witnesses were retired Merck research scientist Alan Nies, current marketing executives Charlotte McKines, who directed the marketing launch of Vioxx, and Jan Weiner, who oversaw Vioxx-related public relations campaigns. They not only testified that Merck heavily promoted Vioxx at a time when the drug maker knew Vioxx was linked to heart-related risks, but they displayed body language that raised credibility issues: shifty eyes, hesitant responses and verbal stumbles. Strategically, it was an unusual endpoint. A lawyer close to the case says Seeger was under pressure from the judge to wrap up his case. His choice, though, to cut his witness list short and end on videotaped testimony, surprised lawyers on both sides. “Plaintiffs’ lawyers in New Jersey like to end their cases with a bang,” says a plaintiffs’ lawyer with Vioxx cases before Higbee. But Seeger ended up with something more like a slow boil. The questioning of the last two witnesses, the two marketing executives, was done in August by Placitella. His direct and aggressive style was visibly disarming to the witnesses. “When you formed the message for Vioxx, it was with no information that Vioxx causes heart attacks, correct?” said Placitella to McKines. “But Vioxx was causing twice the death rate overall [in one study], and Merck was worried about CV [cardiovascular] risk for Vioxx before it was placed on the market. If you’re a patient, don’t you want to know whether a drug can kill you or not?” he asked. Then Placitella recounted that McKines sent out marketing materials to 70,000 doctors saying Vioxx was OK for the heart at the same time statistically significant data emerged showing Vioxx caused heart attacks. “As the person shaping Merck’s message on Vioxx, don’t you think you should have known that Vioxx caused heart attacks?” Possibly because Merck lawyers did not anticipate Seeger resting his case on this testimony, the defense cross-examination did little to undo the credibility problems created for Merck. From the looks of it, though, the jury of six women and three men were glued to the videotaped testimony, two of them taking frequent notes. MOTION TO DISMISS DENIED The next morning, the plaintiffs’ team overcame Merck’s motion for a directed verdict. Higbee dismissed it before the jury arrived, saying the plaintiff’s lawyers had presented “substantial evidence” that Merck had engaged in “misrepresentations and omissions and unconscionable marketing practices.” But the lawyers observing the case hasten to add that Seeger’s cross-examinations and a possible rebuttal will make or break the outcome. Merck’s success, by contrast, depends on its experts being as good as or better than Seeger’s to overcome the credibility issues raised by the plaintiff. “Presumably they have something solid to say about the causes of Humeston’s heart attack,” says a mass tort defense lawyer not involved in Vioxx litigation. “They need to make it forcefully and aggressively. Merck’s case rises and falls on that.” “Lots of shots have been taken at Merck,” the lawyer says. “It’s important to give a time line of everything Merck did to show jurors how it wound up where it did. The fewer witnesses, the better.” That’s why Merck started with Morrison. “They’ve got to block the negatives and put a human face on their case, give it context, a broader picture, and he’s their star,” says the same lawyer. Merck lawyers will call new witnesses beginning today. Associated Press reports contributed to this story.

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