I suggested back in July that corporate defendants have it tough at trial, because they have to precisely toe the line with little margin for error when it comes to procedural and discovery rules because of the potentially disastrous consequences of sanctions, while plaintiffs can be more aggressive in attempts to take advantage of nominally impermissible tactics such as surprise witnesses. And, indeed, in Ernst, the plaintiff was permitted to introduce a surprise witness that, with previously undisclosed expert testimony, contradicted the opening statement of the Merck lawyer who had foolishly thought that the judge would enforce the rules and that he could argue in reliance upon what the plaintiff had disclosed.
Now, in Humeston, the shoe is on the other foot. Merck introduced a fact witness, Briggs Morrison, to testify about a 1997 e-mail he had written, the same e-mail that implausibly moved plaintiffs' expert Benedict Lucchesi to tears. However, then Merck also used Morrison to give expert testimony about studies Merck had performed about the effect of Vioxx on prostacyclin, studies that refuted Lucchesi's theory of causation and knowledge. The plaintiff objected on the grounds that Merck had not disclosed that Morrison was going to give expert opinion testimony. Judge Higbee has struck Morrison's testimony—not just the arguably impermissible testimony about the prostacyclin tests, but all of his testimony, including the critical question of what was meant by his 1997 e-mail and why Lucchesi's interpretation was incorrect. It's not clear that Merck has other means to get this evidence in; while the court is permitting Merck to play the videotape of his deposition, it's not the usual practice for corporate defendants to preserve their planned rebuttal direct examination in the course of a videotaped deposition, not least because the deposition was taken before Lucchesi testified as to his attenuated understanding of Morrison's intentions. (Jon Hurdle, "Judge strikes Merck witness testimony in Vioxx case", Reuters, Oct. 7; New Jersey Star-Ledger Vioxx blog, Oct. 7; Ed Silverman, "First Merck witness prompts fight", New Jersey Star-Ledger, Oct. 7).
This isn't quite a double-standard, because, after all, it's a different judge. (Judge Higbee did reject a Merck argument that the plaintiffs had introduced undisclosed expert evidence in their affirmative case, but press accounts have not given sufficient detail to know whether that decision was correct or incorrect.) But the striking of Morrison's entire testimony, which may cost Merck the case, is a good illustration of the original problem I described in July.
Update: Merck's stock lost about $2 billion in market value today, which strikes me as an accurate assessment of what today says about Judge Higbee's likelihood of providing Merck, who has 2500 cases in front of her, with a fair trial. Judge Higbee and Merck's lead attorney, Diane Sullivan, were in a shouting match over the exclusion order today, with Higbee refusing to permit Sullivan to make a statement for the record objecting to the decision. (Heather Won Tesoriero, "Merck Faces Setback in Vioxx Trial After Judge Strikes Key Testimony", Wall Street Journal, Oct. 7).
Update, Oct.9: Alex Berenson, "Testimony by Witness for Merck Disallowed", New York Times, Oct. 8.
Update, Oct. 10: Paul Davies and Heather Won Tesoriero, "Merck in Limbo After Outburst At Vioxx Trial", Wall Street Journal, Oct. 10.