Judge Made Sick By Testimony Of First Defense Witness In Vioxx Trial

Vioxx, has been pulled from the market because it possibly made patients sick, has now sickened a trial judge. The judge has pulled the testimony of the drug manufacturer’s first witness from the record because reading the testimony made her sick.

Vioxx has been pulled from the market by its manufacturer after studies showed that it was possibly making patients sick. Now, a trial judge has pulled the testimony of the drug manufacturer’s first witness from the record because reading the testimony made her sick.

Boston.com provides the facts of an effort to sneak testimony past a trial judge. And, of the failed attmept to draw the judge into judiical misconduct that would require a mistrial.

The facts:

ATLANTIC CITY, N.J. –The judge in the second Vioxx product-liability trial delivered a stunning blow to Merck & Co. Friday when she barred the testimony of its first defense witness from the record. With the jury out of the courtroom, Superior Court Judge Carol Higbee said she felt misled and sickened upon rereading the transcript of Thursday’s testimony by a Merck researcher who said studies in the late 1990s showed the pain reliever would not cause heart damage.

Higbee struck the testimony of Merck researcher Dr. Briggs Morrison from the record because she said he was not an expert on the studies he had told the jury about Thursday, nor did Merck give the court sufficient notice about what he would discuss.

“I felt sick last night, and I realized how I got sucked into this. I feel that the court was misled repeatedly with this testimony,” Higbee told attorneys.

Morrison was Merck’s opening witness in the three-week trial over whether Vioxx caused the 2001 heart attack of Idaho postal worker Frederick “Mike” Humeston. Merck in August lost its first multimillion dollar product liability case in Texas over the death of another Vioxx user, and 5,000 similar lawsuits are pending….

Higbee said Morrison’s testimony differed greatly from what he had said in a February deposition about internal studies to determine whether Vioxx posed heart risks….

Higbee’s rebuke over Merck’s actions reached a noisy crescendo as she signaled a break following her ruling. Merck attorney Diane Sullivan repeatedly tried to add something to the record. As Sullivan continued loudly, Higbee, standing to leave the bench, shouted, “Miss Sullivan, sit down and be quiet. Sit down or I will have you taken out of the courtroom. “I gave you an opportunity to argue. I listened to you yesterday for hours. Once I rule, it’s over,” Higbee said….

Samuel L. Davis, a lawyer for several other Vioxx plaintiffs, said he did not believe Sullivan’s outburst was spontaneous.

“When a very seasoned, experienced lawyer gets in the judge’s face, that (is) calculated to draw the judge into a fight. Then that fight serves as the basis for a recusal. Or a mistrial,” Davis said. “This judge did not bite.”

I would add that when a defense is attempting to introduce improper testimony or to cause a mistrial the defendant has likely concluded that the evidence presented by the plaintiff is very persuasive and will not be overcome during the trial. What appears to be spontaneous and agitated outbursts by seasoned defense attorneys are usually a designed tactic to dynamite the proceedings.