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Merck Asks for Mistrial in Vioxx Case

Posted on: Wednesday, 28 September 2005, 12:00 CDT

ATLANTIC CITY, N.J. - Two weeks into its second product-liability trial over withdrawn painkiller Vioxx, Merck & Co. asked a judge to declare a mistrial, citing testimony from a plaintiff's witness the company said unfairly inflamed the jury.

The motion made late Tuesday delayed the start of Wednesday's testimony for nearly two hours while Superior Court Judge Carol E. Higbee met with lawyers in her chambers, but she returned to the courtroom and did not address the issue before testimony began with the plaintiff taking the stand.

Postal worker Frederick "Mike" Humeston, 60, of Boise, Idaho, survived a 2001 heart attack two months after he started taking Vioxx to ease pain from an old war wound. Humeston, a Vietnam veteran, filed his suit in 2003, blaming Vioxx for his heart attack.

His 21-year-old son, Seth Humeston, also was scheduled to testify Wednesday.

Merck pulled Vioxx off the market last year after a study showed it raised the incidence of heart attacks and strokes. Humeston's case is one of about 5,000 product liability lawsuits brought against the Whitehouse Station, N.J.-based drug maker.

Lawyers for Merck argued in a motion that medical statistics expert Richard Kronmal, who testified last week on Humeston's behalf, violated a pretrial ruling that experts for the plaintiff were not to testify that Merck's conduct was unethical.

Plaintiffs' attorneys and some doctors have argued that Merck knew Vioxx was dangerous years before the company disclosed that information. Merck says it put patients first and acted responsibly.

Merck lawyers said Kronmal's testimony renders the trial "fundamentally unfair" to Merck, and asked Superior Court Judge Carol E. Higbee to declare a mistrial or to strike Kronmal's testimony from the trial record.

In a motion filed electronically with the court at 11:35 p.m. Tuesday night, Merck lawyers said that Kronmal had called Merck's conduct "unconscionable" and "totally wrong."

"They had evidence that they were potentially killing people and they let that go on for another two years, to 2003 ... To me, that was scientific misconduct," Kronmal told the jury last Thursday.

Merck shares rose 28 cents, or 1 percent, to $27.73 in morning trading on the New York Stock Exchange.

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On the Net: http://www.merck.com

Source: Associated Press/AP Online/By JOHN CURRAN

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