The judge in the second Vioxx product liability trial delivered a stunning blow to Merck & Co. Friday morning when she struck the testimony of its first defense witness from the record.

With the jury outside, 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 by the company 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 Friday morning.

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

Merck voluntarily pulled the drug from the market a year ago after its own study found that more than 18 months of Vioxx use could double the risk of heart attack and stroke.

Higbee said the court had not been made aware of the nature of Morrison’s testimony in advance.

The judge’s actions went beyond the request Humeston’s lawyers made Thursday to strike only Morrison’s testimony about certain animal studies.

Higbee called for a brief break following her ruling. Merck attorney Diane Sullivan repeatedly tried to add something to the record, but Higbee instructed Sullivan several times, at increasing volume as Sullivan continued to speak, to sit down.

“Miss Sullivan, sit down and be quiet. Sit down or I will have you taken out of the courtroom,” the judge said.

Higbee said she would allow jurors to consider a deposition that Morrison gave in February, but would not allow him to testify before jurors.



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