Judge queries Vioxx suit lawyers over document leak

By LINDA A. JOHNSON
NEWSDAY

AP Business Writer

June 30, 2005, 6:49 PM EDT

TRENTON, N.J. -- A New Jersey Superior Court judge handling lawsuits over Merck & Co.'s withdrawn arthritis drug Vioxx questioned 12 attorneys Thursday, trying to determine how The Associated Press obtained a potentially damaging document. None admitted having provided the document to the news cooperative.

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, N.J.-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 the judge asked plaintiff attorneys whether they or any associates had seen the document, had disclosed it to the press or knew who had.

Further hearings involving both plaintiff and defense attorneys 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.

During a second Vioxx-related hearing before Higbee Thursday afternoon, attorneys gave oral arguments as to whether Higbee should grant class-action status for a consumer fraud lawsuit filed on behalf of a labor union health care plan, the International Union of Operating Engineers Local 68 Welfare Fund.

Attorneys Christopher Seeger and David Buchanan, representing the fund, want Higbee to allow them to sue Merck on behalf of third-party health payors nationwide, such as HMOs and other insurers, alleging that Merck committed fraud by not disclosing important information about Vioxx.

Merck outside counsel Jeffrey Judd said afterward that he argued Higbee should not allow a class-action suit, stating that consumer fraud laws vary considerably from state to state and that third-party payors had different information and did individual analyses in deciding whether to cover Vioxx under prescription drug plans.

Following the 3{-hour hearing, Higbee said she would consider the information and issue a ruling later.

Seeger, of New York City, is co-lead counsel on the plaintiffs steering committee guiding the initial phase of federal Vioxx lawsuits. They have been consolidated under U.S. District Judge Eldon E. Fallon in New Orleans until evidence gathering is complete. Those cases will then go back to their original jurisdictions for trial