An expert witness in high dollar litigation over Merck’s discontinued Vioxx pill faces potential sanctions from a federal judge for disclosing confidential information regarding the case to The Wall Street Journal. Professor David Egilman of Brown University testified as an expert witness for plaintiffs alleging Merck misled consumers about the dangers of Vioxx, and recently came under fire for violating a 2005 confidentiality order issued by a federal court when the litigation was in its early stages.

Expert Witness in Vioxx Litigation Challenges Confidentiality Order

Vioxx was an anti-inflammatory pill manufactured by Merck that was withdrawn from the market after studies linked its usage to increased risk of heart attack and death. Millions of Americans used Vioxx, and thousands of deaths were allegedly linked to side effects caused by its use before the drug was recalled. In litigation filed by the Kentucky Attorney General, who alleged Merck violated consumer protection laws by failing to disclose the risks associated with Vioxx, Professor Egilman was called to offer his expert testimony on the quality and integrity of the drug’s clinical tests. As part of his investigation, Dr. Egilman was given access to internal emails, research reports, and other documents from Merck that allowed him to testify about what the company knew before releasing Vioxx to the market.

The lawsuit settled for $23 million in November, but as part of the agreement Merck was not required to admit that the company did anything wrong in the manufacture, testing, and distribution of the drug. Shortly after the case in Kentucky was resolved, Dr. Egilman sought, and was granted, legal permission to challenge the confidentiality order protecting documents from Merck that he believed included information about the testing and distribution of Vioxx, about which the public had a right to know. In describing his decision to seek the release of Merck’s documents, Dr. Egilman stated that he was privy to information that suggested the company misrepresented the health effects of the drug and engaged in fraudulent studies during Vioxx clinical testing.

Merck Seeks Sanctions Against Expert Witness

Although Merck has declined to comment on Dr. Egilman’s legal efforts to declassify Vioxx documents, the company has taken legal action against the expert witness over comments he has made about the case. Merck claims that Dr. Egilman’s description of the alleged contents of the confidential documents was sufficient to violate a 2005 protection order precluding expert witnesses from revealing the details of the case. Even though Dr. Egilman did not specifically describe the documents in question, Merck argues that it could be harmed by his comments regarding their contents.

In defense, Dr. Egilman has responded that the statements he made were already publically known, and that he did not provide sufficient detail to violate the confidentiality order. Dr. Egilman claims that he is not precluded from offering his thoughts on what the documents contain, and has not violated the confidentiality order by simply talking about the investigation he conducted while preparing to be an expert witness. While the US District Court Judge Eldon Fallon considers Merck’s petition, he has issued a restraining order against Dr. Egilman preventing him from making any additional comments about the case.

Case Highlights Confidentiality Concerns for Expert Witnesses

The consequence of breaking confidentiality is something that Dr. Egilman should be sensitive to already. In 2007, he agreed to pay $100,000 to drug manufacturer Eli Lilly after he released information learned while testifying as an expert witness for plaintiffs in litigation over the company’s anti-psychotic drug, Zyprexa. Even though Eli Lilly later settled the criminal investigation over Zyprexa by pleading guilty to promoting the drug for inappropriate use and paying $1.4 billion, Dr. Egilman was not entitled to break court-imposed confidentiality as he saw fit. As the legal action against Dr. Egilman demonstrates, any expert witness who believes that the public has a right to know information contained in court protected documents can expect potentially serious, and expensive, consequences if confidentiality is violated.