updated 9/15/2005 2:23:51 PM ET 2005-09-15T18:23:51

The judge hearing a product liability suit against Merck & Co., the manufacturer of painkiller Vioxx, reprimanded the company’s lead lawyer Thursday for violating pretrial instructions barring comments about lawyers in front of the jury.

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Threatening to declare a mistrial, Superior Court Judge Carol E. Higbee said Merck lawyer Diane Sullivan had made repeated negative references about attorneys in her opening statement to jurors Wednesday, despite being told not to do so.

“It’s simply playing to the bias of jurors ... a certain perception that there are too many lawsuits and that it’s causing society problems,” Higbee said while the jury was out of the courtroom.

In Wednesday’s opening, Sullivan made reference to plaintiff Frederick “Mike” Humeston being “surrounded by lawyers” and later criticized their interpretation of evidence by saying, “That’s not science, that’s lawyering, lawyering, lawyering.”

Humeston, a 60-year-old postal worker from Boise, Idaho, alleges Vioxx caused him to suffer a heart attack four years ago. Humeston had been taking the blockbuster drug for about two months to relieve lingering pain from a Vietnam War shrapnel wound to his knee. His lawyers told jurors on Wednesday, when testimony began, that Merck rushed the product onto the market, ignored evidence of problems with some patients and didn’t warn doctors or users that Vioxx could increase the risk of heart attacks and strokes.

Sullivan denied those allegations, telling jurors that Merck’s witnesses would prove Vioxx had nothing to do with Humeston’s heart attack and the company researched the drug’s effects and reported the problems when it found out about them.

Whitehouse Station, N.J.-based Merck withdrew the popular arthritis and pain treatment from the market in September 2004 after its own research showed Vioxx doubled risk of heart attack and stroke after 18 months’ use.

On Thursday, the start of testimony was delayed by Higbee’s criticism and a dispute over whether Merck would be allowed to admit into evidence a key 2005 memo from a Food and Drug Administration advisory committee. The judge ruled it cannot be admitted.

Besides reiterating the warning that attorneys should not cast aspersions on other lawyers, Higbee on Thursday barred them from making any further references to Merck having pulled Vioxx from the market. Both sides had raised that fact in opening statements. Higbee said it was not relevant because the withdrawal happened after Humeston’s heart attack and after he filed suit.

When testimony resumed Thursday, Dr. Gregory Lewer, Humeston’s physician, returned to the stand. Under questioning by Humeston attorney Chris Seeger, Lewer said if he had known of the Vioxx’s potential cardiovascular risks, he would never have prescribed it for Humeston.

“I didn’t have the information I wish I had at the time,” said Lewer, who said the Vioxx package insert and label didn’t tell him of the risks.

Lewer said that Humeston had once asked him about amputating his leg because the pain was so bad, but Vioxx relieved his pain after other drugs had failed.

On cross-examination, Lewer acknowledged to Merck attorney Sullivan that all medications come with risks.

The trial, one of about 2,475 Vioxx lawsuits pending in New Jersey, is the first since a Texas jury found Merck responsible for the death of a Vioxx user and ordered a $253 million award. That amount will be slashed to about $26 million because of Texas caps on punitive damages.

Merck shares were down 2 cents at $28.68 in afternoon trading on the New York Stock Exchange.

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