Merck attorney Diane Sullivan has done it again. Her unprofessional behaviour in the first Humeston trial attracted the anger and reprimand from Superior Court Judge Carol Higbee. With the kind of rebuke that she received even a six-year old would have gotten the message; not Sullivan though it seems.

In a replay of her past behavior, she violated all the rules of behaving professionally in a court. "It is unprofessional, it is unethical, and it is contemptuous of this court," Judge Higbee said. She further accused Sullivan of deliberately violating the Judge's orders and vowed that she was "not going to deal with this kind of unprofessionalism." Ouch!

Oh, are things that bad at Merck that they can't hire a decent lawyer to represent them in the latest trial? Yes, they are. Hope Freiwald, another attorney on Merck's team, confirmed "We're going to continue to go forward with Diane as the lead counsel."

Rudolph Arrigale and Lawrence Appell from California are blaming Merck for knowing the dangers of the painkiller but not disclosing these to them, their physicians, and the FDA. They say that if they knew that the painkiller was deadly, they would have never taken it. In the trial, the jury got deadlocked over the issue of Merck's responsibility for communicating the risks and dangers.

Brian Panish, the plaintiff's attorney is asking for a retrial. Retrial in the case of Frederick "Mike" Humeston (Mark Lanier is his attorney again) is in progress in Atlantic City. The other new case being tried has been brought by Kathleen Hermans Messerschmidt (represented by Christopher Seeger), sister of Brian Hermans who died at the young age of 44 after taking Vioxx.

In a related development, a New Jersey court is also directing Superior Court Judge Carol Higbee to allow medical monitoring of patients who took the drug but did not suffer any cardiovascular complications right away. In another judgment, the Vioxx class action lawsuits are also going forward.

Vioxx victims received another victory over Merck. The company withdrew the deadly painkiller in 2005 after it was found that as many as 60,000 Americans died due to heart attacks and strokes due to the side effects of the drug. Many of these patients who did not suffer a cardiovascular complication, like Phyllis Sinclair and Joseph Murray, had sued the firm seeking medical monitoring. The company has been very hostile to its past customers and refused to pay for it.

A New Jersey Appeals court is ordering Superior Court Judge Carol Higbee that she reconsider her earlier decision to side with the drugmaker.

Vioxx litigation resumes

While recent months have meant setbacks to Vioxx victims and victories for Merck, in a favorable decision to the victims, a New Jersey appellate court has ruled against the company, potentially allowing some more class action lawsuits to go forward.

In related news, after a break for Christmas holidays, Vioxx litigation is resuming in the court of NJ Superior Court Judge Carol Higbee, who is presiding over most of the approximately 27,000 cases.

One plaintiff is Frederick "Mike" Humeston, a decorated Vietnam veteran, who first lost his case because Merck hid critical data about the dangers of the painkiller. He eventually won a retrial and the trial is now on.

The second lawsuit has been fined by the estate of Brian Hermans, who died of a heart attack at an early age of 44. While Merck has won some cases arguing that victims were already obese and had pre-existing cardiovascular complications, it may be somewhat harder to claim that in this case. Hermans was "a world-class racquetball player" whose autopsy showed a heart artery blocked by a large blood clot (something that Vioxx is known to do). The attorney taking on Merck is Mark Lanier, who also defended Carol Ernst.