Youth May Play Vital Role in Vioxx Case / Attorneys for Both Sides Say a Young Jury Will Help Them Win

Two of the jurors who will decide if Merck & Co. Inc. caused the death of 59-year-old Robert Ernst are only 20 years old.

They’re old enough to help decide the outcome of the first of nearly 4,300 lawsuits filed across the country involving claims against the once-popular painkiller Vioxx. But they’re not old enough to order a glass of wine with dinner.

Another juror is 21, another 23 and one 28. Only one, a 62-year- old alternate, is older than Ernst was when he died in 2001 or than his widow, Carol Ernst, is now.

Indeed, the jury is a young-looking group. And some of those close to the case say young juries often favor defendants and tend to be more conservative than their older neighbors. On the other hand, younger people tend to be more suspicious of drug companies and less dependent upon the drugs they make, other experts say.

“It really comes down to how good your case is,” said Jonathan Skidmore an attorney on the team representing drugmaker Merck & Co. Inc.

“Usually, a young jury isn’t as likely to find for the plaintiff,” said Mark Lanier, who represents Carol Ernst. But in this case, he said, he’s confident the jury will agree that Merck’s painkiller Vioxx caused the death of Robert Ernst in 2001.

“They are paying attention,” Lanier said. “It looks like a good jury.” Six in the group are in their 40s. One is 53 and one of the alternates is 37. Others on both sides agree that younger juries are sometimes less likely to give big awards to plaintiffs. “The children of liberal baby boomers tend to be more conservative than their parents,” said Angleton attorney Michael Phillips, who is working with the Merck defense team.

Even though Vioxx was often considered an old person’s medicine, taken mainly to relieve the pain of arthritis, younger jurors may be more predisposed to find against drug companies.

That’s the view of Jeffrey Cooper, a St. Louis attorney whose firm currently represents 400 Vioxx clients. “Younger people don’t have a belief that pharmaceutical companies can do no wrong,” he said. “Older people are often dependent upon drugs and rely more on the drug companies. Younger people are used to hearing that drug companies put profits before patients,” he said.

In the end, he said, it’s always a calculated risk getting younger or older jurors in a trial.

Picking a jury in Texas

In Texas, picking a jury can be as much, or more, about keeping people off a jury that lawyers on one side or another don’t want as it is about getting people on the jury they do want.

Most of the time, 48 prospective jurors are assigned to jury pools for trials in state district courts in Brazoria County. This time, state district judge Ben Hardin asked for 150 prospective jurors. The last juror picked for the Vioxx trial was number 80 on the list.

Most of the ones who were excused, including two doctors, said they had strong opinions in the case. Others had already made vacation plans that would be ruined by a five-week trial.

Phillips noted that most of the time when the judge and lawyers tell prospective jurors that a trial is expected to last a long time, would-be jurors start looking for reasons to get out of being on the jury.

This time, he said, their attitude seemed to change when it was pointed out that the trial was drawing national attention and that a lot of news reporters would be there.

“They seemed to want to be on the jury,” he said. As the third week of testimony resumed this week, the jury of eight men and six women (including two alternates) come and go to their appointed places in the big courtroom in complete silence.

Carol Ernst claims in her lawsuit that Merck &. Co. Inc. caused the death of her husband, who died in his sleep after taking Vioxx for about eight months.

Merck countered that he didn’t take the drug long enough to have any problems with Vioxx and that the drug didn’t cause arrhythmia, listed as the cause of his death.

When all the testimony by company executives and legal, medical and marketing experts ends, and all the lawyers have finished arguing and making their cases, it will be the jury that decides if Merck was at fault. If the jury finds Merck at fault, they also will decide how much money the company must pay his widow.

Lanier has never said how much he intends to ask the jury to award Ernst. “I haven’t even thought about it,” he said. As the trial goes on, dozens of people move in and out of the courtroom, sometimes making the scene seem less like a trial and more like a massive planning session.

Workers for both sides move boxes of documents in and out, stashing some under rows of pew-like seats and others in stacks along the walls of the 65-year-old courtroom.

Who’s who on the jury

Ernst, 60, from the small town of Keene near Fort Worth, sits quietly on the front row of the gallery, not far from the jury. She met her husband late in life and was married to him for less than a year.

She and her miniature dachshund, Bo, are living in a hotel in Houston during the trial, and both find the city too noisy for their tastes. When Bo goes outside in Houston, his tail is always between his legs, she said.

Lanier and his team commute to Houston every day. Those who are from other cities stay in a downtown Houston hotel. Merck’s legal team has set up headquarters in a Lake Jackson motel. Jurors come from all over sprawling Brazoria County, which is bigger than the state of Rhode Island. Three, including both alternates, are from Angleton, the county seat and the geographical center of the county.

Three others are from Pear- land, the county’s largest and fastest-growing city. Two more are from nearby Alvin, and another from Manvel – all from the increasingly populous north part of the county, the part closest to Houston.

Two are from Lake Jackson, and one each from Freeport and Clute, towns in an area often referred to as Brazosport. One is from West Columbia, one of the oldest towns in the county and for a brief period the capital of the Republic of Texas. Ten are white, two are black and two are Hispanic, as they identified themselves on the jury form.

Job breakdowns

There are two technicians in the group, one homemaker, a construction worker, a contractor, an electrician, a clerk, and a human resources manager. One is a service representative, one works in food production and another in a child care center. One is a secretary and another a receptionist. One is retired.

None is a corporate executive, doctor, pharmacist or health care worker.
When the jurors file in through either of two doors behind Hardin, their presence is loudly announced by Melvin Anders, known since the second grade as “Pinky,”shouting “Jury comin’ in!”

For each long day of service, jurors are paid $25 a day. Unlike in some larger cities, they don’t have to pay to park and don’t usually have to walk farther than across the street to get to the courthouse.

One special perk they’re getting that most Brazoria County juries don’t get is that Hardin is treating them to a catered lunch every day.

When the court breaks for lunch, the jury usually treks across the courthouse lawn to the old courthouse next door, which was built in 1897 and is now used as a historical museum.

In the end, it will be the jurors’ collective voice that speaks the loudest. But even though their decision will end the trial, it probably won’t end the case.
There’s little doubt that whichever side loses will file appeals. Carol Ernst and Merck may have to wait for the case to wind through appeals courts for several years to learn the final outcome.