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Vioxx Verdict Postmortem: Weak Case, Tough Jury
Merck & Co.'s slam-dunk win on Thursday in the nation's second trial over the health effects of its drug Vioxx had as much to do with jury selection and a less-than-sympathetic plaintiff as it did with trial evidence and lawyering, say legal experts who followed the trial. The jurors, primarily white people in middle-class vocations such as teacher, county prosecutor, bank executive, bookkeeper, accountant and real estate broker, were disinclined to believe that Merck failed to warn Vioxx-prescribing physicians of health risks. The sole juror to find in the plaintiff's favor on the failure-to-warn issue was the only minority on the jury, Juan Garcia, a Dominican engineer working as a busboy in Atlantic City. He joined the others in finding no consumer-fraud violations in Merck's Vioxx marketing. And although the jurors never had to reach the question of whether Vioxx was the proximate cause of plaintiff Frederick "Mike" Humeston's heart attack, their post-verdict comments made clear they were convinced that stress and other health factors were the more likely causes. "Mr. Humeston had way too many other health issues to pin it on Vioxx," juror Vickie Heintz, a bookkeeper from Mays Landing, told reporters on Thursday. Not exactly a plaintiff-friendly jury. "This case was 80 percent over in jury selection," says a plaintiffs' lawyer in attendance, echoing a refrain of plaintiffs' lawyers since the outset of the trial. The jurors' demographic makeup may explain why they were more concerned with the plaintiff's responsibility than with Merck's, says Frank McClellan, who teaches medical malpractice, tort law, bioethics and drug liability at Temple University's Beasley School of Law.
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