Plaintiffs Lawyer Proposes Pay Hike for Vioxx Jurors
As New Jersey's next, predictably lengthy Vioxx trial approaches this month in Atlantic City, a lawyer for the plaintiffs is proposing a way to make jury service more palatable: supplemental juror pay.
He's not talking about a slight bump up of the $40 per diem maximum rate, either. Instead, he'd like to boost it to $100, with the excess funded equally by the plaintiffs and defendant Merck & Co.
The idea is unheard of in New Jersey, but you can't blame W. Mark Lanier for trying. He proposed the same plan last summer in Angleton, Texas, and the well-paid jury, after a six-week trial, awarded $253.5 million to a Vioxx user's widow.
Texas has a statute allowing such excess funding: New Jersey does not. So Lanier's request, at a Jan. 25 conference with Atlantic County Superior Court Judge Carol Higbee, blazes a new trail. At issue is the makeup of the jury for a trial that begins on Feb. 27 and is expected to last six weeks. The plaintiffs suffered heart attacks after protracted Vioxx use.
Higbee is keeping an open mind. If she approves the plan, and if Merck goes for it, jurors would receive weekly cashier's checks, in addition to their court pay, without knowing the source.
The idea behind the plan is to get a more representative jury pool, since the added compensation would quell blue-collar workers' most common objection to lengthy jury service: loss of income.
In Atlantic City, casinos do not provide long-term payment for jury service, and "that cuts off a majority of the population" from service, says plaintiffs lawyer Samuel Davis of Teaneck's Davis Saperstein & Salomon. "What you're doing is precluding juror diversity."
There seems little in it for Merck, which won a startling no-cause verdict last November after a seven-week Vioxx trial with a white-collar jury: eight of the nine jurors were white, middle-class professionals, including a doctor's wife and schoolteacher, a bank manager and a county prosecutor. The one casino worker, a Honduran immigrant, was the only juror to find for the plaintiff on any issue.
Thus, Merck's lawyers were tepid about the plan, according to three plaintiffs lawyers at the conference. Merck spokeswoman Casey Stavropoulos declined to comment. Theodore Mayer of New York's Hughes Hubbard & Reed, who orchestrates Merck's Vioxx trial strategy, did not return a call.
'TWO-TIER SYSTEM' FEARED
The idea of supplementing jurors' stipends doesn't sit well with former N.J. jurists interviewed. "You can't change the rules of the game for one litigant," says former state Supreme Court Justice Daniel O'Hern. "It would create a two-tier system of justice," wherein litigants' fortunes would depend on their financial resources.
But other states besides Texas have enacted fee-financed programs to enhance juror pay during lengthy trials.
Minnesota passed legislation to pay jurors financially harmed by long service, inspired by losses suffered by jurors who served in a four-month tobacco trial in 1998 that ended in a $7.1 billion settlement. One juror lost his house to foreclosure, another nearly lost his job and a third was forced into bankruptcy, according to Paula Hannaford-Agor, director of research at the National Center for State Courts in Williamsburg.
In Arizona, civil litigants are charged an additional $15 filing fee to fund supplemental pay (beyond the standard $12 per diem) in trials that last longer than 10 days. Unemployed jurors get $40 a day, from the fourth day to the end; employed jurors not receiving their usual income get up to $100 a day between the fourth and 10th day, and up to $300 a day thereafter. Jurors whose employers pay for their service receive no stipend. The program is based on a model by the American Legislative Exchange Council, which seeks to improve jury service.
In the first 18 months of the program's operation, ending last June, Arizona provided about $130,000 in additional compensation to 172 jurors in 48 long trials, according to an article by G. Thomas Munsterman, director of the center for jury studies at the National Center for State Courts, and Cary Silverman of Shook, Hardy & Bacon in Washington, D.C. Their findings will be published this March in the American Bar Association's Judges' Journal.
Munsterman and Silverman say Arizona's program allowed service by low-wage workers, who otherwise would not have been financially able to sit.
Arizona legislators who opposed the program pointed to the inequity of varying payments to jurors serving on the same trial. But Arizona court administrators responded by saying that the fund remedies "an already unequal situation in which some jurors are paid by their employers during jury service while others are not," say Munsterman and Silverman.
Silverman says Vioxx cases are good examples of trials that require great financial sacrifice of jurors. "The Lengthy Trial Fund provides an innovative means to address this issue and ... has proven itself in Arizona," says Silverman. "Getting people from all walks of life to serve [on juries] is an issue that should have the support of both the plaintiff and defense bar... . While few trials last longer than three or four days, those that do have high stakes," he adds.
He's not talking about a slight bump up of the $40 per diem maximum rate, either. Instead, he'd like to boost it to $100, with the excess funded equally by the plaintiffs and defendant Merck & Co.
The idea is unheard of in New Jersey, but you can't blame W. Mark Lanier for trying. He proposed the same plan last summer in Angleton, Texas, and the well-paid jury, after a six-week trial, awarded $253.5 million to a Vioxx user's widow.
Texas has a statute allowing such excess funding: New Jersey does not. So Lanier's request, at a Jan. 25 conference with Atlantic County Superior Court Judge Carol Higbee, blazes a new trail. At issue is the makeup of the jury for a trial that begins on Feb. 27 and is expected to last six weeks. The plaintiffs suffered heart attacks after protracted Vioxx use.
Higbee is keeping an open mind. If she approves the plan, and if Merck goes for it, jurors would receive weekly cashier's checks, in addition to their court pay, without knowing the source.
The idea behind the plan is to get a more representative jury pool, since the added compensation would quell blue-collar workers' most common objection to lengthy jury service: loss of income.
In Atlantic City, casinos do not provide long-term payment for jury service, and "that cuts off a majority of the population" from service, says plaintiffs lawyer Samuel Davis of Teaneck's Davis Saperstein & Salomon. "What you're doing is precluding juror diversity."
There seems little in it for Merck, which won a startling no-cause verdict last November after a seven-week Vioxx trial with a white-collar jury: eight of the nine jurors were white, middle-class professionals, including a doctor's wife and schoolteacher, a bank manager and a county prosecutor. The one casino worker, a Honduran immigrant, was the only juror to find for the plaintiff on any issue.
Thus, Merck's lawyers were tepid about the plan, according to three plaintiffs lawyers at the conference. Merck spokeswoman Casey Stavropoulos declined to comment. Theodore Mayer of New York's Hughes Hubbard & Reed, who orchestrates Merck's Vioxx trial strategy, did not return a call.
'TWO-TIER SYSTEM' FEARED
The idea of supplementing jurors' stipends doesn't sit well with former N.J. jurists interviewed. "You can't change the rules of the game for one litigant," says former state Supreme Court Justice Daniel O'Hern. "It would create a two-tier system of justice," wherein litigants' fortunes would depend on their financial resources.
But other states besides Texas have enacted fee-financed programs to enhance juror pay during lengthy trials.
Minnesota passed legislation to pay jurors financially harmed by long service, inspired by losses suffered by jurors who served in a four-month tobacco trial in 1998 that ended in a $7.1 billion settlement. One juror lost his house to foreclosure, another nearly lost his job and a third was forced into bankruptcy, according to Paula Hannaford-Agor, director of research at the National Center for State Courts in Williamsburg.
In Arizona, civil litigants are charged an additional $15 filing fee to fund supplemental pay (beyond the standard $12 per diem) in trials that last longer than 10 days. Unemployed jurors get $40 a day, from the fourth day to the end; employed jurors not receiving their usual income get up to $100 a day between the fourth and 10th day, and up to $300 a day thereafter. Jurors whose employers pay for their service receive no stipend. The program is based on a model by the American Legislative Exchange Council, which seeks to improve jury service.
In the first 18 months of the program's operation, ending last June, Arizona provided about $130,000 in additional compensation to 172 jurors in 48 long trials, according to an article by G. Thomas Munsterman, director of the center for jury studies at the National Center for State Courts, and Cary Silverman of Shook, Hardy & Bacon in Washington, D.C. Their findings will be published this March in the American Bar Association's Judges' Journal.
Munsterman and Silverman say Arizona's program allowed service by low-wage workers, who otherwise would not have been financially able to sit.
Arizona legislators who opposed the program pointed to the inequity of varying payments to jurors serving on the same trial. But Arizona court administrators responded by saying that the fund remedies "an already unequal situation in which some jurors are paid by their employers during jury service while others are not," say Munsterman and Silverman.
Silverman says Vioxx cases are good examples of trials that require great financial sacrifice of jurors. "The Lengthy Trial Fund provides an innovative means to address this issue and ... has proven itself in Arizona," says Silverman. "Getting people from all walks of life to serve [on juries] is an issue that should have the support of both the plaintiff and defense bar... . While few trials last longer than three or four days, those that do have high stakes," he adds.
posted by Chris Placitella at 6:28 AM
0 Comments:
Post a Comment
<< Home