When six women and three men retire to a jury room in the Atlantic County Civil Courthouse to begin deliberating in the second Vioxx product liability case, they’ll have plenty to consider.
After seven weeks, 21 witnesses, hundreds of documents and enough testimony to fill 5,764 pages of trial transcript, they face a daunting task – deciding whether Vioxx caused a postal worker’s heart attack and whether drug maker Merck & Co. is liable for it.
Closing arguments are expected Monday, with deliberations beginning either Monday or Tuesday. Lawyers met with Superior Court Judge Carol Higbee on Thursday to hash out how she will instruct jurors prior to deliberations.
The jury’s decision will have ramifications beyond plaintiff Frederick “Mike” Humeston.
Merck, whose wonder arthritis drug has gone from $2.5 billion-a-year blockbuster to a stock-depressing liability nightmare, lost the first trial over Vioxx when a Texas jury awarded a Vioxx widow $253 million in damages in August. Merck plans an appeal.
About 7,000 suits have been filed on behalf of former Vioxx users, and Humeston v. Merck could serve as a legal bellwether, with a Merck loss possibly prompting the company to reconsider its plans to try the cases one by one.
Analysts say Merck could end up paying billions in damages over Vioxx, either through jury verdicts or settlements, should it choose that route.
For now, the focus is on the jury, which includes an assistant county prosecutor, the wife of a retired surgeon and a casino-hotel worker.
By all appearances, the panel has been remarkably attentive given the complex, sometimes-arcane testimony, which has included lengthy descriptions of how the heart works, what effect drugs have on it and how Merck tested the drug.
Through it all, jurors have been exposed to 50-cent words and complex medical school-level concepts, including thromboxane, atherosclerosis, Kaplan-Meier curves and NSAIDS.
“It’s gotten pretty deep,” said David Buchanan, one of Humeston’s lawyers. “I can’t imagine one of them had ever hard of prostacyclin or endothelium before this.”
But jurors in the trial have had one advantage in coming to terms with all the terms. In New Jersey, jurors are allowed – once lawyers for both sides are done questioning a witness – to submit questions of their own before he or she is dismissed.
That process helps jurors clear up questions left by testimony, and simultaneously lets lawyers know what’s sinking in and what isn’t, providing a sort of legal road map as they continue to try the case.
“In this case, the questions have signaled the jurors’ understanding of the testimony,” said Jim J. McHugh Jr., a Philadelphia lawyer who has filed cases on behalf of former Vioxx users and has followed the Humeston case via Court TV.
With body language, jurors sometimes show how much they’re absorbing. But what they are thinking remains unknown until they deliver a verdict, he said.
“Some will nod, some will smile at you or catch your eye. But a lot of times, you’re reading tea leaves. You may think the jury’s thinking one thing and find out later it was just the opposite,” McHugh said.