Bad start for Merck in Vioxx trial in Atlantic City
Several experts believe that one of the contributing factors to Merck’s defeat in the Carol Ernst vs Merck trial was the aggressive attitude of its legal team. In fact, contrary to Cross Examination 101, Ms Carol Ernst was literally harrassed by Merck attorneys. She was questioned for a long time and some even thought she was asked questioned that appeared to be “stupid.” None of this go well with the jurors who sided with Ms. Ernst and awarded her over a quarter billion dollars. A firm that is clearly on the defensive can not come across as arrogant and aggressive no matter how much they believe their own stories.
But it is clear that Merck has not learned from its mistakes. As previously reported, the company has not made any changes in its legal team or strategy and in fact may even be backing off from its intial offer to settle some case.
Belittling trial lawyers
But this first week of Humeston vs Merck trial must have given a lot of things for Merck legal team to think about during the weekend. While Merck did not score any points during the pre-trial stage, its lead attorney Diane Sullivan received a reprimand from Judge Carol Higbee. Things got so ugly that there were calls for declaring a mistrial when Ms. Sullivan continued to deride trial lawyers despite agreement to the contrary prior to the start of the trial.
FDA memo disallowed
At another point Ms. Sullivan literally jumped from her chair and almost shouted in the courtroom when Judge Higbee refused to allow a FDA document that she thinks is full of errors and contradictions (but seems to help Merck’s argument that Vioxx is, if not safe, at least as dangerous as all other Cox-2 inhibitor drugs).
Testimony by Dr. Benedict Lucchesi
Merck had tried to hard to block testimony by Dr. Lucchesi who is an icon in the world of cardiology. He delivered a powerful testimony in Angleton establishing a strong link between Vioxx and heart diseases. Despite losing its motion at the pre-trial stage, Merck tried again to block him from speaking on the ground that there was no basis for his claim. Judge Higbee again rejected the requested and Dr. Lucchesi delivered another powerful testimony in which he charged that Merck scientists put profits before human life.
Testimony by Dr. Gregory Lewer
Dr. Lewer is the physician who prescribed Vioxx to plaintiff Frederick “Mike” Humeston. He was attacked by Diane Sullivan but at one point she was so aggressive that any doctor who didn’t know about a 2000 study that found heart attacks in Vioxx users “had to be living under a rock.” Dr. Lewer was clearly offended by the remark. The point Ms. Sullivan was trying to make was that a drug company has a right to sell deadly products and the doctors should research themselves if there are any dangers.
Experts believe that this approach is unlikely to endear Merck to the jurors. The trial will continue next week.
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