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.

Doctor Critical of Vioxx Leaving Clinic

Dr. Eric Topol, a world-renowned cardiologist who was one of the first scientists to raise doubts about the safety of the pain reliever Vioxx, will leave the Cleveland Clinic and its top-ranked heart center to teach at nearby Case Western Reserve University, the Case medical school announced Thursday. The hospital has been confronted with questions about ethical conflicts between patient needs and profits by its researchers, including Topol and CEO Toby Cosgrove, also a noted cardiac surgeon. Merck & Co. pulled the arthritis pain killer Vioxx from the market because its own study showed the drug doubled a patient's risk of heart attacks and strokes. It turned out that Topol was a paid consultant to a hedge fund that was betting against Merck shares. Topol said he was unaware of the short-selling, had no financial interest in the fund and quit. The reason Topol is leaving the hospital was unclear. His departure from the clinic is imminent, said Dr. Ralph I. Horwitz, medical dean at Case Western Reserve University. Topol, 51, is known for his pioneering work on the role of genetics in heart disease, and he used the clinic's premier standing to crusade for awareness of the number one health threat to people's lives. He has been a medical professor at Case. His new appointment as a professor of genetics will involve teaching and research, Horwitz said. Messages seeking comment were left for Topol and the hospital. Topol has directed the clinic's cardiology program for 14 years. His departure, first reported on The (Cleveland) Plain Dealer's Web site, caps more than a year of upheaval at the clinic, whose heart center under Topol's leadership has been ranked No. 1 nationally by U.S. News and World Report for 11 years. The center attracts patients from around the world. In December, Topol lost two high-profile positions at the clinic when the medical school he helped establish decided to eliminate the dual position of provost and chief academic officer. The Cleveland Clinic Lerner College of Medicine of Case Western Reserve University opened in 2004. Topol will be teaching both Case and Lerner college medical students in his new position, Horwitz said. "We're delighted to strengthen our ties with Eric in the work we do," Horwitz said. "Doctor Topol, I think, is one of the pre-eminent physician-scientists in the United States."

Hidden Data Haunting Computer Users

When the New England Journal of Medicine used a word-processing function to reveal that Merck had deleted study data about Vioxx and heart attacks, the pharmaceutical giant joined a long line of organizations bitten by information lurking in electronic files.
It's happened to organizations from the Pentagon to the British prime minister's office.
Each time, making minor electronic adjustments to documents aired juicy details not meant for public disclosure -- such as the true author of a file or sensitive data hacked from a final draft.
The pitfalls of such hidden "metadata" have long been known in computer-savvy circles, but these high-profile leaks are driving new efforts to keep a lid on metadata. So sensitive is the topic for the U.S. government that the National Security Agency released guidance in December on how agencies can properly redact reports.
For the corporate world, several companies are finding success in selling tools to automatically scan for and remove metadata.
Metadata is data about data. A word-processing document, for instance, has metadata on who authored it, when someone saved it and what that person did to it. Microsoft's Word program has a "track changes" feature that preserves a file's original text and shows another person's edits. All that is metadata.
This information is designed to stick around because it can help people organize their files and collaborate with one another.
But because it doesn't show up when a document is printed and doesn't appear on screen in normal settings, it's easy to forget about.
Fears about the hazards of metadata led Microsoft to pull back on a planned feature in Vista, the upcoming Windows operating system. Originally, Vista was going to let users drag and drop files into spots on the desktop in order to label documents with personalized categories.
But Vista testers told Microsoft it might become "a little too easy" to apply the categories and have them stick permanently to the document, said Mike Burk, a Windows product manager. That could get ugly if a file labeled "projects I hate" were e-mailed to a boss.
Meanwhile, the next generation of Microsoft's widely used Office software, which includes Word, Excel and PowerPoint, will make it simpler to strip metadata from files before they are disseminated.
Even so, Gartner analyst Michael Silver says the problem will remain -- metadata will exist in documents unless users make a point of getting rid of it.
"It's still a manual process. It's still something you have to remember to do," Silver said. "Any time you're relying on the user to remember something, there's a good chance that they'll forget."
The Pentagon had a hidden-data episode last May. Before posting a report in Adobe Systems' Portable Document Format about a U.S. soldier who had accidentally killed an Italian secret service agent in Iraq, officials covered up classified information with black bars.
But there's a difference between covering and deleting information. Readers simply uncloaked the text by cutting it from under the black and pasting it elsewhere.
Automated tools to help protect against metadata releases have existed for a while, but they are beginning to see wider use. For example, Workshare sells a product called Trace that scans documents for metadata and ranks the findings by risk level. For most of Workshare's six years in existence, the company's customers were primarily lawyers, who are particularly sensitive about client information escaping to the opposing side.
But in the past year, Workshare has seen business expand to 60 percent of the Fortune 1000, said CEO Joe Fantuzzi. Revenue has surpassed $25 million, and Fantuzzi believes metadata protection is on the verge of being a must-have for corporate technology buyers.
Richard Smith, a computer privacy expert at Boston Software Forensics, mined metadata to determine who in the British prime minister's office worked on a 2003 dossier on Iraq.
Even in a world more attuned to the perils of metadata, however, Smith doesn't think the material will dry up.
"There are simply too many people who work in governments around the world, and there is no way to educate them all about metadata," he wrote in an e-mail. "I expect to see a steady stream of slip-ups in the future."

Plaintiff attorneys change approach in first federal Vioxx case

Lawyers switched legal tactics for the retrial of the first federal Vioxx case, working to convince jurors that manufacturer Merck & Co. ignored safety in favor of sales, rather than opening with medical testimony. That approach is much closer to an earlier trial in a Texas state court, in which jurors decided Whitehouse Station, N.J.-based Merck should pay $253.4 million, than to the original federal trial. The federal trial ended with a hung jury; jurors reached afterward said the deadlock was 8-1 in Merck's favor.
Evelyn Irvin Plunkett claims that taking Vioxx for a month caused the heart attack which killed her husband Richard "Dickie" Irvin in 2001, and that Merck hid the dangers of its product from scientists and the public. In the Texas trial, the first witnesses were physicians and pathologists who explained why they believed that Vioxx had caused the heart attack. Merck contends that the heart attack was caused by a 30-year buildup of plaque in his blood vessels and had no relation to Vioxx. This time, the first three witnesses all worked in Merck's marketing or public relations department. On Tuesday, off-camera attorneys questioned J. Martin Carroll, who was executive vice president of marketing in 2001, and Jan Weiner, executive director of public affairs, about why information about heart attacks wasn't part of marketing or press materials. "It's not a change of tactics," just a matter of bringing in evidence which became available after the first trial, said Russ Herman, head of the federal plaintiffs' steering committee and spokesman in this trial for Plunkett, said Monday. The first witness, whose testimony was played Monday afternoon, was asked about internal correspondence including a reference to a "bad guys list" of doctors who questioned the drug's safety, and a memo listing "physicians to neutralize." The "neutralize" list was among the first evidence brought up in the earlier state trial in Angleton, Texas. However, Herman said the legal team didn't have other documents to support their claim that Merck used "junk science." The e-mail nomination of a doctor to the "bad guys list" had been sent to Baumgartner. "That wasn't my phrase," she said. She said "neutralize" meant to provide correct information so those doctors would "come to a neutral or fair position," she said. In rebuttal testimony played for the jury Tuesday, she said she got a pharmacology doctorate to follow her father's footsteps, and worked for Merck because it embodied her values of putting patients first. Meetings which the plaintiff's attorney had characterized as attempts to change doctors' minds included physicians whose opinions crossed the spectrum, because the aim was to learn what they thought, she said. Merck did not put on any rebuttal video for Carroll or Weiner. It didn't need to because the witnesses were clear, spokesman Kent Jarrell said. "This case is all about causation. That is the most important part of the case," he said. "Marketing doesn't go to the point because the prescribing doctor never reviewed the literature and never met with marketing representatives" from Merck. Carroll, who now is president and chief operating officer of Boehringer Ingelheim Pharmaceuticals Inc., of Ridgefield, Conn., was shown several Merck studies in which patients taking Vioxx had more heart attacks and other cardiovascular problems than those given another drug or sugar pills. He said he hadn't seen them before. They were written while Carroll was at Merck, and its sales representatives had information cards saying Vioxx was about as safe for the heart as a sugar pill. "This says the trend is against Vioxx. Not similar. Right?" an off-camera attorney asked. "That's what it says," Carroll answered. A bit later, the attorney asked, "Did you share this information with doctors?" That wasn't information for salespeople _ they have to stick to what's on the label and packaging insert, Carroll said. Doctors have plenty of other information sources, such as medical conferences, meetings and publications, he said.

Jury seated in retrial of federal Vioxx case

NEW ORLEANS – An eight-member jury was seated Monday for the retrial of a federal lawsuit over whether Vioxx caused the death of a Florida man and if the pain killer's manufacturer, Merck & Co., hid the drug's dangers.
Opening arguments were to begin Monday afternoon before the five-man, three woman jury. U.S. District Judge Eldon Fallon had told jury pool members that at least six people are required for a federal civil trial and he planned to seat eight for this one – a retrial of the first federal civil trial of a Vioxx lawsuit, which ended with a hung jury.
The first federal trial was held in Houston in the wake of Hurricane Katrina. Once again, jurors will be asked to decide whether Vioxx caused the death of Richard “Dicky” Irvin, who took the drug for about a month before suffering a fatal heart attack.
Merck withdrew Vioxx from the market in September 2004 after a study showed it doubled patients' risk of heart attack and strokes after 18 months of use. Around 9,650 Vioxx lawsuits has been filed against Merck. Aside from the hung jury, Merck has won one case and lost another. An additional case is going on in state court in Texas.
The court had sent out notices to 200 potential jurors. With 61 of them reporting to Fallon's courtroom, all available jury pool seats were filled.
Those dismissed included a man who said he couldn't give video testimony the same weight as testimony in person. “I don't trust people to start with, and I've been told all my life, 'Don't trust anything you see on TV.'”
The question whether prescription drug companies do a good job of monitoring safety of drugs once they are on the market prompted a diatribe from one man. “They don't care what happens once they're on the market,” he said. “You can have a judgment here, one there. The company still makes billions of dollars. They don't care.”
Merck shares were down 56 cents to $33.83 in afternoon trading on the New York Stock Exchange.