Here’s one sure bet in Atlantic City—none of the lawyers involved in the Vioxx litigation against Merck want to get blamed for leaking information to the media.

But one of them just might get the heat for disclosing a document last week to the Associated Press, which wrote a story suggesting the drug maker may have known more about heart problems caused by its Vioxx painkiller than was acknowledged publicly.

Starting today, Superior Court Judge Carol Higbee will be questioning several attorneys—on a one-by-one basis behind closed doors—to find out who leaked the document, which was about a patent for Vioxx proposed by Ed Scolnick, Merck’s former chief scientist.

The leak came shortly after Higbee granted Merck’s request to keep the document confidential, even though the drug maker inadvertently gave it to attorneys who filed some of the 2,000 Vioxx lawsuits against Merck in state court in Atlantic County.

It’s easy to understand why Higbee is perturbed.

In her May 27 ruling, which became available publicly only last week, Higbee wrote that all copies of the document “must be returned to Merck or destroyed immediately” by the attorneys.

It’s not clear what, if any action Higbee may take. Some characterized the questioning as a student being called into the principal’s office, but others say Higbee could decide an attorney is in contempt of court. So far, Merck isn’t seeking sanctions.

The episode is being closely watched, especially since the first Vioxx trial in the nation is scheduled to begin next month in Texas. The run-up to the July 11 event is prompting a lot of behind-the- scenes posturing by Merck and lawyers representing plaintiffs.

The first lawsuit in any national litigation often sets the tone for others that will follow. Wall Street thinks Merck may face billions of dollars in liability. And dozens of attorneys have a stake in the outcome, including many from New Jersey, New York and Philadelphia.

The first lawsuit filed in Atlantic City is expected to go to trial in September.

Another judge agreed yesterday to reconsider an earlier decision on whether attorneys in the hundreds of Vioxx lawsuits can question the other side’s witnesses.

The hearing before U.S. District Judge Eldon Fallon focused on two points deemed critical by patients suing the drug giant: whether they will have access to records concerning Vioxx maker Merck’s sales force of some 3,000 people, and whether Merck can talk to doctors who prescribed the drug. Plaintiffs’ attorneys want to have the records for their cases, but also are asking Fallon to prevent Merck’s lawyers from speaking with the doctors.



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