A New Jersey Superior Court judge handling lawsuits over Merck & Co.’s withdrawn arthritis drug Vioxx was questioning attorneys Thursday in hopes of discovering how The Associated Press obtained a potentially damaging document. 

The document, inadvertently given by Merck to plaintiff lawyers during evidence gathering in one of the hundreds of Vioxx lawsuits, indicated Merck scientists were mulling combining Vioxx with another compound to lower the risk of heart attacks and strokes.

It appeared to undermine Merck’s statements that company officials believed the drug was safe before they pulled it from the market last September after a Merck study showed long-term Vioxx use increased heart attack and stroke risk.

Judge Carol E. Higbee in Atlantic City ruled May 27 that the document was privileged and could not be used at trial. She ordered attorneys with copies to destroy them or return them to Merck immediately. Whitehouse Station, NJ.-based Merck had insisted the document was an attorney-client communication between company scientists and in-house patent counsel.

The Associated Press reported details in the document on June 22. A copy of the document was provided to The Associated Press on the condition that its source not be identified.

Higbee’s clerk, who asked not to be identified by name, said about a dozen attorneys, some representing plaintiffs and some defense attorneys, were scheduled to be questioned Thursday. Further hearings were scheduled for Friday and for July 12.

If Higbee can determine who is responsible, the judge would then hold further proceedings to determine whether to impose sanctions, find the attorney in contempt of court or pursue some other option, the clerk said.



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