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Whatever the outcome of the Atlantic City, N.J., Vioxx trial, lawyers on both sides are less likely to be surprised than they were over the $253 million verdict in Texas against Merck & Co. That’s because the judge is letting jurors question witnesses, and by all indications, the six women and three men are carefully scrutinizing the evidence. The most telling sign of that came Sept. 28, as they peppered plaintiff Frederick Humeston, a postal worker from Boise, Idaho, about whether something other than Vioxx may have caused his allegedly debilitating heart attack. How many doctors wrote pain prescriptions for Humeston? How was he able to work eight hours nonstop with no breaks? Did he ever combine Vioxx with narcotic painkillers? Did his doctor ever discuss the side effects of the medication with him? Was he stressed out by the events of Sept. 11, 2001? For the jurors, it was a kind of catharsis, as they at last got to put a face on the scientific evidence heaped on them since the trial began four weeks ago. For the lawyers, juror questions are sources of early feedback, enabling each side to assess its weaknesses and alter strategies before it’s too late. And since the trial is being covered live by Court TV Extra, it is becoming an educational laboratory for lawyers on both sides of mass tort cases nationwide. Few courts in New Jersey and other states allow juror questions, particularly in complex cases. But Superior Court Judge Carol Higbee, who is presiding over New Jersey’s 2,400 Vioxx cases, has made it a practice since the state Supreme Court first gave judges the authority in 2002. Although defense lawyers caution against reading too much into juror questions, they’re happy to have the tool at their disposal. “Our lawyers have no problem at all with juror questions in this case,” says James Fitzpatrick, of New York’s Hughes Hubbard & Reed, who is Merck’s designated spokesman. Plaintiffs lawyers are more enthused. “This jury’s questions are going into all aspects of exposure and causation,” says Samuel Davis of Teaneck, N.J.’s Davis Saperstein & Salomon, who has nearly 100 Vioxx cases before Higbee and is watching the Humeston trial with interest. “It could be for one of two reasons: They’re exhibiting a high level of diligence or they’re cynical, and they’ve already made up their minds,” says Davis. “It’s fair to say that the jurors in this case, considering that they’re listening to complex testimony, are paying rapt attention, and their questions reflect it.” David Jacoby, who has more than 200 Vioxx cases and is also sitting in on the Humeston trial, says most juror questions arise out of issues raised during cross-examination. “In the 9/11 question, it seems the jurors are exploring whether stress was a triggering event,” says Jacoby, of the Cherry Hill, N.J., office of Anapol Schwartz Weiss Cohan Feldman & Smalley. “Otherwise, it’s a really weird question.” Juror questions can contain useful information for practitioners, says defense lawyer Alan Klein, a partner in Philadelphia’s Duane Morris, who is not involved in Vioxx litigation but handles diet-drug cases. “You may not want to hear the questions,” says Klein. “They may indicate you’re not doing so well. But it’s important feedback after every witness that you wouldn’t get otherwise.” The jurors at the Vioxx trial generally listen intently and sometimes take copious notes. One juror is a former Camden County prosecutor and insurance defense lawyer; the others include a retired real estate agent, a bank manager, a casino supervisor, an accountant, a grade-school teacher and an administrative assistant. “Looking at the juror profiles, these are people who will give Merck a fair shake,” says a defense lawyer not involved in Vioxx cases. “They’re people who have a middle-class lifestyle and might at least listen to Merck’s proofs.” The jury will hear Merck’s proofs after the plaintiffs lawyer wraps up his case, which should be today. Christopher Seeger, of Seeger Weiss in Newark, N.J., has at least two more witnesses to call, Humeston’s wife, Mary, and Federal Drug Administration expert David Eagleman of the University of Texas. So far, the jury has heard a biostatician, a pharmacologist and a cardiographer testify that a lot of people exposed to Vioxx got hurt but wouldn’t have had Merck put timely warning labels on the drug and done proper clinical trials. Humeston, who took Vioxx intermittently from May until September 2001, claims that Merck intentionally misrepresented the problem with the painkiller as well as its safety and efficacy from 1997 until it took the drug off the market in September 2004. Seeger and David Buchanan, also of Seeger Weiss, rely on a study Merck conducted in 1999, in which patients taking Vioxx suffered five times as many heart attacks as patients taking an older, cheaper painkiller, naproxen, or Aleve. It wasn’t until April 11, 2002, that Merck revised its label to incorporate the 1999 results. Merck’s chronology is different, as is its view of the 1999 study. Merck says it took Vioxx off the market in September last year after a company-sponsored clinical trial showed an increased risk of heart attack and stroke in people using Vioxx daily for more than 18 months. Merck’s position is that because the 1999 study did not compare Vioxx with a placebo, the results could not explain whether the increase in heart attacks was due to a cardio-protective effect of naproxen or just chance. The Whitehouse Station, N.J., drug maker defends its marketing of Vioxx and is taking steps to prevent repercussions from its voluntary withdrawal of the drug. To that end, on the eve of Humeston’s day on the stand, Merck lead counsel Diane Sullivan of Princeton, N.J.’s Dechert Price moved for a mistrial on the ground that the plaintiffs violated a pretrial order barring introduction of evidence of the withdrawal. Sullivan said that University of Washington biostatistician Richard Kronmal violated the order on Sept. 23, when he testified, “The evidence is clear that Vioxx does increase the risk of thrombotic events, and I don’t think the company is at this point denying that it increased the risk. They, after all, stopped their trial and withdrew the drug from the market on the basis of thrombotic risk.” Sullivan asked that, at a minimum, Higbee strike Kronmal’s testimony, because he commented on the company’s ethics in continuing clinical trials despite high mortality rates among participants. Before jurors took their seats, Higbee rejected a battery of Merck motions to exclude testimony and a supplemental report by Nicholas DePace, the Philadelphia cardiologist who testified last week. But Higbee deferred ruling on the mistrial motion until Seeger has a chance to respond. Lawyers on both sides who are familiar with Kronmal’s testimony don’t expect the judge to declare a mistrial. They do, however, expect Higbee to give a curative instruction to the jury. They also say Sullivan’s motion was necessary to make a record with the Appellate Division, should Merck need one later. DEATH NO APHRODISIAC For Humeston, the juror questions came at the end of a long day on the stand, in which he gave an emotionally charged account of how his heart attack robbed him of his joie de vivre and stamina and forced him to cut back on a range of activities. He told of how he went from being “bulletproof” one day, thinking nothing of hiking 50 miles in the desert for four days, to being completely dependent the next, now having to rely on his wife to carry his bags at the airport. Asked by Seeger how his heart attack had affected his romantic life with his wife, Humeston replied, “The specter of death is not an aphrodisiac to me.” On cross-examination, Merck defense lawyer Christy Jones pursued several lines of questioning designed to poke holes in Humeston’s credibility. She took him back 30 years to establish a medical chronology that included treatment for two panic attacks and a diagnosis of mitrol valve prolapse, which Seeger later established to be a harmless anatomical fluke. In one of the few sophisticated visual exhibits used thus far in the trial, Jones projected slides of month-to-month calendars to show, in one instance, that Humeston may have used up his supply of Vioxx pills before his heart attack. Humeston’s comeback, however, was consistent with his earlier testimony that he took Vioxx as needed, which was hardly every day as he was averse to taking the medication to begin with. Jones, of Butler, Snow, O’Mara, Stevens & Cannada in Jackson, Miss., also tried to show that Humeston was suffering from job-related stress. He had a dispute with his bosses over his need for a desk job due to a knee injury as a Marine in Vietnam, where he was wounded by shrapnel. His bosses suspected he was gaming on the system so they set up surveillance, Jones said. But nothing ever came of it, he answered. Jones also touched on the issue of damages, noting that Humeston still takes trips into the great wide open with his wife in their Volkswagen Thing. On redirect, Seeger brought out that Humeston was never demoted or disciplined during his 24 years at the Post Office and in fact has won several awards over the years for not using sick days. In response to the juror’s questions, Humeston said that he is in the habit of working with no breaks for eight hours, and can do it because he sits in a cubicle and leaves at 3 p.m.; that he has never combined Vioxx with narcotic painkillers, and would be “deathly afraid” to do so; that his doctor, Gregory Lewer of Boise, never discussed the painkiller’s side effects and that when the planes struck the World Trade Center, he was horrified but found it more sad than stressful.

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