Vioxx jurors cashing in as trial advisers
Sunday, October 23, 2005
BY ED SILVERMAN AND JEFF MAYStar-Ledger Staff
Jurors in the nation's first Vioxx trial knew they would be thrust into the limelight this August when they slapped Merck with a multimillion dollar judgment.
Now, two months later, some of those same jurors are getting star billing of a different sort -- and a nice paycheck -- as paid advisers for trial lawyers lining up against the embattled New Jersey pharmaceutical company.
The practice of paying discharged jurors for their insights, unheard of until recently, shows a growing sophistication and coordination among mass tort lawyers as they pursue big quarry such as Merck. In addition, legal experts say, it could carry risks for the jury process as payments become more commonplace.
On Nov. 2, four of the 10 jurors who returned a $253 million verdict against Merck in Angleton, Texas, will speak on a teleconference with some of the attorneys involved in the more than 6,000 Vioxx cases in state and federal courts.
The program, sponsored by the legal publishing business Mealey's, promises to give participants "an exclusive, one-time only opportunity to find out what worked and what didn't from actual jurors in the first Vioxx trial."
For their 90 minutes of work, jurors will receive $500.
While these payments trouble some legal ethicists, it's not the first time Vioxx jurors will receive compensation for discussing the case, nor will it be the last.
Three jurors were flown from Texas to New York last month to brief a group of plaintiff lawyers. And Mealey's wants to recruit jury members from the second Vioxx trial, now under way in Atlantic City, for a conference in December, said Randy Dunham, a spokesman for Lexis-Nexis, which owns Mealey's.
Informal questioning of jurors after a verdict is standard practice by attorneys. After the verdict in the Texas case -- won by the widow of Robert Ernst, a 59-year-old Wal-Mart produce manager who died in 2001 while taking Vioxx -- Merck lawyers called jurors at home to discuss how deliberations unfolded, according to two jurors.
In some states, such as New Jersey or Massachusetts, attorneys are not allowed to approach jurors. A session set up by an independent group can get around that prohibition, however, and can come relatively cheaply: Mealey's Vioxx teleconference, for example, only costs $199 a pop.
That's a pittance compared to focus groups or mock trials, which lawyers regularly use before heading to court. Typically, such an exercise can last from one to five days and cost anywhere from $5,000 to as much as $100,000, according to Chris Placitella, a lawyer involved in the Vioxx trials.
The transformation of jurors into paid legal advisers is a recent phenomenon. Dunham said it was pioneered in mass tort cases involving asbestos and lead.
COMMODITY VS. ETHICS
Vioxx was developed as a treatment for chronic pain without the stomach problems of aspirin or other traditional pain relievers. It was used by more than 20 million Americans before Merck, based in Whitehouse Station, withdrew the drug a year ago after a study suggested it led to an increased risk of heart attacks and strokes.
Most of the lawsuits against Merck contend the company knew about the cardiovascular risks years before sales of the drug were halted but downplayed them to doctors and the public. Since many cases are expected to revolve around the same witnesses and internal documents that have been the focus of the first two trials in Texas and New Jersey, the Ernst jurors' impressions are considered valuable by attorneys.
"In some of these very expensive, high-profile cases, you want every advantage you can find," said George Badey, a plaintiff lawyer whose Philadelphia firm is handling several Vioxx cases.
Said Ellen Relkin, whose firm also has numerous Vioxx cases: "It's especially valuable to New Jersey attorneys, because we're not allowed to speak with jurors after a trial."
The catch is getting jurors to agree to talk in the first place. That's where Mealey's $500 "honorarium" comes in.
"We are paying them because otherwise they'd have no incentive to participate," Dunham said.
But payments, if they become common, could lead to distractions in the jury room, said Andrew Kaufman, a Harvard Law School professor who specializes in legal ethics. Hoping to cash in, jurors could become consumed with reconstructing deliberations instead of performing their main task: deciding the case fairly, he said.
A juror conceivably could say, "I took careful notes during the deliberation process, so you should pay me five times as much," Kaufman said. "Does that have an effect on the jury process? It could if it became widespread."
There are other concerns.
The Ernst judgment has not been formally entered yet and Merck has said it plans to appeal the award, which may be reduced to roughly $26 million once Texas limits on punitive damages kick in.
Whatever the Ernst jurors say on the teleconference could conceivably be scrutinized for evidence of jury misconduct or other grounds of appeal, legal experts say.
A spokesman for Merck's legal team, Kent Jarrell, said he is aware of the Vioxx jurors' appearances on behalf of trial lawyers.
"This appears to be more about the promotion of the plaintiffs' cases than the law or the science," he said.
NOT ABOUT THE MONEY
To be sure, the Ernst jurors say they are hardly getting rich off the trial.
Derrick Chizer said he is participating in the teleconference to send a message to Merck and other pharmaceutical companies about drug safety.
"Based on the outcome of the trial, $500 is basically nothing," he said. "I'm the kind of person that's going to speak my mind."
The teleconference is the second event in which Chizer will participate. In late September, he and two other Ernst case jurors were flown to New York City and put up at the Hilton by Ernst's law firm for a private seminar with more than 100 lawyers, he said. They were also given a per-diem for expenses during the trip, Chizer said. The jurors, in interviews last week, declined to say how much.
Others jurors were asked to speak but decided to pass. Marsha Robbins, the jury forewoman, flew to the seminar in New York but decided not to participate in the upcoming conference call. She said the six-week trial was "pretty strenuous," and not something she was anxious to relive again -- even for $500.
"I've gone back to the real world," she said.
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