An Interesting Twist On The Second Vioxx Trial

An interesting angle that will likely set the second Vioxx trial in New Jersey apart from others (besides being televised on Court TV): Superior Court Judge Carol Higbee is allowing jurors to question witnesses on both sides of the fence.

And jurors used that privilege to ask plaintiff Frederick Humeston, an Idaho postal worker, an variety of questions. Among them:

  • The way the plaintiff used Vioxx in relation to other drugs.
  • Any discussions about Vioxx's potential side effects with his physician.
  • The number of doctors who wrote pain prescriptions for him.

Although New Jersey and a few other states allow such questioning by jurors, the practice is far from common, especially in complex cases like this one. However, Higbee has used it since the New Jersey Supreme Court gave judges that authority three years ago.

This practice has also sparked considerable speculation among attorneys as to how seriously the jury is considering these claims against Vioxx. One attorney watching the trial and is handling about 100 Vioxx cases of his own believes jurors ''are paying rapt attention, and their questions reflect it.''

Merck trial lawyers must be worried about the outcome. Higbee rejected a motion Monday for a mistrial filed by Merck for a fifth time based on a witness not following her instructions about mentioning Vioxx being pulled from the market a year ago. In her ruling, Higbee noted, ''There is absolutely no chance that these jurors do not know that Vioxx was taken off the market.''

Law.com October 5, 2005

MSNBC October 3, 2005

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