In what was the most explosive day yet, in either of the two Vioxx trials, Judge Carol Higbee ruled today that Merck misled the court in two separate instances. The admonishment and ruling by Judge Carol caused an explosion of tempers and shouting in the court room after she ruled that Merck's company medical director, Briggs Morrison, had testified on matters outside of his areas of practical expertise. After delivering a blistering rebuke of the Merck legal team for not giving sufficient notice about the nature of his testimony and the contents of his remarks, she ruled that Mr. Morrison would not be allowed to again take the stand during the trial.
According to comments in this evenings Wall Street Journal online edition, which has, by the way, done a superb job reporting fairly on this trial, Judge Higbee met in " an emotional 20 minute oral decision with the jury outside the court room, in which she said she was "sick" over Merck's actions and Dr. Morrison's testimony on Thursday. " I feel that I was mislead repeatedly yesterday during that testimony" she said.
Again, paraphrasing the report as printed in the Journal, when the judge stood to leave the bench, lawyers for Merck jumped up and demanded that they be allowed to add statements for the record. The shouting match that ensued after her denial of the request led to Merck attorney Diane Sullivan being told to sit down seven times and the judge screaming that Ms. Sullivan risked being removed from court.
This amazing display is recounted in detail in the WSJ online and it's fascinating reading. We will call our contacts who were there to get a further review of the incident and the impact it might have on this trial as Merck mounts it's defense now that Chris Seeger has rested his case.
Based on my reading of the case todate, the observations of our friends in the courtroom, and feed back from others in the legal community, Merck knows they have another serious fact problem in this case, that Chris Seeger has been waiting several years to put this case on, and that they are working hard to create either a mistrial or the basis for an appeal, all in a desperate effort to hang on until they get to the cases in Federal court scheduled for next month in New Orleans. The actions of Merck's attorney's smack of desperation, a flawed defense and an attempt to buy time until they can make their last stand in Federal Court. If they lose there, in my opinion, the case is over, and the decision makers of this questionable defense strategy are going to have to answer to some exceptionally upset institutional stockholders. These, in my opinion, are cases you can't conceive of defending one case at a time, this isn't tobacco we are talking about, but a flawed medication that caused the death and disability of thousands of people, and a global, negotiated settlement is the only hope that Merck has. If the Humeston case is another big verdict, you can expect there to be huge pressure from the insurance and investment community for Merck to formulate and settlement strategy to save the company.