There’s a fine line between aggressive lawyering and intimidation, and a federal judge says an ImClone attorney crossed it with his treatment of Stephen Gillies. The scientist was lined up as an expert witness on behalf of MIT and Repligen in their three-year-old patent lawsuit against ImClone over Erbitux.

Both MIT and Repligen complained that ImClone’s outside lawyer, Paul Richter of Kenyon & Kenyon, and ImClone’s in-house counsel, Tom Gallagher, intimidated Gillies, who invented the patented product, during questioning and by contacting his current employer, which happens to be Merck, After being questioned, Gillies told MIT he didn’t want to testify anymore.

As punishment, US District Court Judge Richard Stearns says jurors may be told about the attempts to deter Gillies from testifying. He also awarded MIT “reasonable” attorney fees and costs, and barred Gallagher from using or seeing confidential data in the case, which is being heard in Boston. Stearns, who also sanctioned Gallagher, wrote: “The questioning was undertaken as part of a deliberate stratagem to deprive MIT of Dr. Gillies’ services as an expert witness.”

There’s nothing surprising about this - the courtroom is a semi-civilized battlefield, after all. Rules and a judge’s patience are always being tested. And expert witnesses are generally paid to put up with indignities. But it would be interesting to know just what Gallagher said to Merck that so upset Gillies.

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