Merck's Future Rides on Jury

The plaintiff's case is weak. Humeston, a 60-year-old postal worker from Boise, Idaho, contends that Vioxx caused his heart attack even though he had used Vioxx for only two months. If the data do indeed show an elevated risk of cardiac events in patients taking Vioxx -- and there's certainly expert testimony on both sides of that question -- it shows the heightened risk in patients taking Vioxx for 18 months. As one of Merck's experts put it, there's no "significant evidence" that Vioxx is a risk factor when taken for less than three months.

In contrast to the Texas trial, where the case was brought by the grieving widow of an athletic, 59-year-old man, Mike Humeston is still alive. That has let Merck raise questions about how much Humeston's own behavior contributed to his heart attack. Shortly before his heart attack, Merck has pointed out, Humeston was involved in a stressful dispute with his employer.

The New Jersey jury is paying attention to the science. How do we know? Because in the New Jersey system, jurors are allowed to ask questions of witnesses -- actually, they submit questions to the judge, who asks them -- after the lawyers are finished. Many of the questions have involved clarification of scientific issues and medical terminology.

In Texas, the jury seems to have tuned out the scientific testimony early in the trial, according to post-trial analysis by both sides in the case. That destroyed any chance Merck had to convince jurors that it had conducted valid risk studies for Vioxx before taking the drug to market. In Texas, the trial hinged not on science but on the emotional formula of widow against big, evil, profit-hungry corporate giant.

Merck's lawyers aren't facing Mark Lanier. In the Texas case, lawyer Mark Lanier ran circles around Merck's legal team. The charismatic Lanier came across as a down-to-earth Texan. That helped him with his message to the jury of "send them a message." Lanier knew the community and the values of these jurors. They were highly religious, for example, and began their deliberations each day with a silent prayer. Lanier himself is a part-time Baptist minister.

In contrast, Merck's team, from such national powers as Houston's Fulbright & Jaworski, Washington's Williams & Connolly and New York's Hughes Hubbard & Reed, came across as the hired gunslingers of a far-distant and unfeeling corporation. Lanier also just plain out-lawyered Merck's team.

The Texas trial may have hinged on the testimony of Marie Araneta, who had performed the autopsy on the plaintiff's body. Merck presented the coroner's death certificate, which stated that the plaintiff had died of an arrhythmia, as conclusive proof that he had not died of a heart attack. But then in a videotaped deposition, Araneta testified -- for Lanier -- that she had never ruled out a heart attack as the cause of the plaintiff's arrhythmia. It turns out that Merck's lawyers had never bothered to interview the coroner; Lanier had.