Vioxx Witness Update

I wrote yesterday that a trial judge was going to permit the pathologist who performed the autopsy of the plaintiff’s decedent in the Vioxx case to testify.

How important is that testimony to the plaintiff? Well, a good guage of that is that Merck has appealed the decision in the middle of the trial. The court of appeals denied the request for review, and Merck appealed to the Texas Supreme Court.

How can Merck claim surprise when the doctor was on its witness list?

Practice pointer: dang near everything you do in litigation has some implication somewhere later. Playing cute with a witness list, i.e. trying to hide the ball about who you were actually going to call by listing people you have no intention of calling just got these folks in trouble.

Of course, Lanier took a gamble by not putting the doctor on his own list. Then again, how much of a gamble is it that a big firm working for a drug company is not going to name everybody in the universe on its witness list?