Vioxx Jury Will Be Weighing the Evidence and Not the Intangibles Being Pondered By Courtroom Observers

As a number of high-profile trials have demonstrated, juries often reach verdicts that surprise “observers” who have predicted the opposite outcomes based on considerations other than the evidence. The current Vioxx trial is no exception.   

News reports published on Monday speculated that several factors might enter into the jury’s deliberations including:

·    plaintiff only took Vioxx for two months before his heart attack;
·    plaintiff survived his injuries;
·    the case was litigated in Merck’s home state of New Jersey; and
·    Merck’s attorney made every effort to make it appear as if the trial judge was being unfair to the drugmaker with her rulings.

Thus, Merck’s stock actually rose slightly yesterday despite the fact that the case had yet to be submitted to the jury for deliberations. This indicates a level of optimism that cannot be legitimately assumed in any case where a jury must make its determination based on the evidence and not on conjecture.

Jurors tend to take their responsibility to reach a verdict based on the evidence alone very seriously. They are charged by the trial judge to consider only the admissible proof offered at trial.

Thus, the jury is specifically instructed to disregard the comments made by the attorneys in their opening statements, colloquies involving the trial court, and summations as none of those statements constitute evidence.

Another important factor to consider is that so-called courtroom observers do not actually see the same trial as the jurors see. This is because:

·    observers are often not present for the entire trial;
·    jurors are not present for much of the non-evidentiary portions of the trial such as motions, colloquies, off the record discussions at the bench or in chambers, hostile exchanges between attorneys, and disagreements with the trial judge;
·    jurors get to carefully examine all of the exhibits received in evidence throughout their deliberations;
·    observers usually have a built-in bias one way or the other with respect to how they want the case to be decided; and
·    jurors are almost always extremely limited in the number of trials they have actually seen while observers are frequently attorneys, ex-judges, or seasoned litigation reporters who have an entirely different perspective on the rulings and strategic decisions made at trial.

Here, the jury has seen much of the damaging evidence that prompted experts, consumer advocates, and even FDA insiders to question the safety and efficacy of Vioxx and its COX-2 counterparts for years before Vioxx was pulled from the market.

Under the circumstances, none of the “intangibles” speculated upon by courtroom observers should have anywhere near the same impact on the jury as the overwhelming and compelling evidence it will consider as it enters its deliberations.

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