VIOXX® Trial Week One: Merck Attorney Chastised by Judge; Jurors hear disagreement – Did Merck adequately warn of VIOXX’s® Harmful effects?
For Immediate Release Jan. 26, 2007
ATLANTIC CITY, N.J. – New Jersey State Superior Court Judge Carol Higbee accused Merck attorney Diane Sullivan of being “defiant of my orders” in a rare display of judicial displeasure during the first week of the most recent trial pitting Mark Lanier and The Lanier Law Firm against the Whitehouse Station-based pharmaceutical giant. This is the 14th trial in which plaintiffs allege that VIOXX® caused heart attacks and that the company did not adequately warn physicians and patients.
In this trial, jurors are hearing testimony involving VIOXX® patients Brian Hermans, who died of a heart attack in 2002 after taking VIOXX® for nearly nineteen months, and Frederick Humeston, who suffered a heart attack in 2001. Mr. Lanier is representing Kathleen Hermans Messerschmidt, Brian Hermans’ sister. Mr. Humeston is represented by Chris Seeger of New York’s Seeger Weiss LLP.
During the trial’s second day, Judge Higbee admonished attorney Sullivan for “unethical” and “unprofessional” conduct during her opening statements. According to Judge Higbee, Sullivan violated pretrial orders designed to prevent certain statements from being made to the jury. Speaking from the bench, Judge Higbee identified numerous specific violations; including talking about Merck’s cancer research and noting that the plaintiffs in the case did not reside in New Jersey. Judge Higbee also admonished Sullivan for showing jurors a slide that included a photograph of Mr. Lanier. Judge Higbee had previously barred use of the slide. Sullivan attempted to explain herself but was rebuffed by the judge.
In his opening statement, Mr. Lanier used visual aids to illustrate that Merck ignored specific studies warning of health risks related to VIOXX®, while pursuing a multi-million dollar marketing campaign directed at consumers and physicians. Using traffic lights as an example to illuminate his point, Lanier said that Merck saw the “yellow lights” early on during the development of VIOXX®. “Instead of hitting the brakes,” Lanier said, “Merck speeds ahead.” Lanier said Merck’s scientists and executives put the potential profit above patient safety by not revealing more about VIOXX® risks. “Merck speeds right past the truth,” he said.
Merck attorney Sullivan responded to Lanier’s opening, telling jurors that Merck rigorously studied VIOXX® and made the data available to both regulators and physicians. “Heart attacks are, unfortunately, really, really common in this country,” Sullivan said in her opening statement. “There is nothing different or distinct in the patients using VIOXX®.” Sullivan also attempted to persuade jurors that Merck responded appropriately to warnings about VIOXX®. “What a disastrous business plan, make a bad medicine, lie about it to doctors,” Sullivan said. “It’s not what Merck is about. It’s not true.”
Merck, one of the nation’s largest pharmaceutical companies, withdrew VIOXX® in 2004 after a study showed it raised the risk of heart attacks. Merck currently faces 27,000 lawsuits over the drug.