Defense attorney gets turn to interview Vioxx jurors

Steve Gonzalez Feb. 27, 2007, 1:49pm

"The loss of a mother and a wife is a very tragic thing," Merck attorney Dan Ball of Bryan Cave told potential jurors during a two-hour "voir dire" session in Madison County's Vioxx trial Tuesday afternoon.

"It's okay to have sympathy," he said.

"I have sympathy, but there is another side to the story," Ball added when asking a panel of 73 jurors if they agree that there are two sides to every story.

Jurors 13 and 32, who were later released by Madison County Circuit Judge Daniel Stack for cause, informed Ball they could not wait to hear Merck's side of the story.

Opening arguments are expected to begin at 11 a.m. Wednesday.

At 6:00 p.m., Stack dismissed the panel which had been winnowed down to 27. Lawyers on both sides must ultimately agree on 12 regular and three alternate jurors.

The panel is due back in court at 10:30 a.m. Motions will be heard before at 9 a.m.

The trial was delayed on Monday because Stack could not get a return flight to St. Louis following a vacation.

Plaintiff's attorney Mikal C. Watts of Corpus Christi, Texas, who questioned jurors for two hours in the morning, plans on asking for "tens of millions" of dollars for his client Frank Schwaller. His 52-year-old wife Patricia Schwaller died suddenly of a heart attack after taking Vioxx, an arthritis pain relieving drug that was removed from the market in 2004.

When it was his turn, Ball asked jurors if they would favor the "little guy" over the "big guy."

"It is a natural inclination to favor the little guy," he said.

Jurors 6 and 8 informed Ball that they thought they would in fact favor the little guy and were later released for cause.

Ball asked jurors if they thought there is any medicine that is 100 percent safe. No jurors agreed.

Two jurors told Ball that any side effect from a drug is the fault of the manufacturer.

Ball asked if any jurors thought that because Vioxx was taken off the market, it was automatically defective.

He then asked jurors if they knew anyone in the room.

A small handful of jurors knew one another from school, church or work.

One had a son who went to school with plaintiff's attorney John Driscoll. Another worked with the judge's wife.

One woman said his sister was a friend of Patricia Schwaller.

In the end, all the jurors agreed that medicines in general are good, and that defendant Merck deserves the same consideration as the plaintiff.

In the morning, Watts told the panel that the deceased was morbidly obese, had high blood pressure and high cholesterol.

He also told the panel that Merck sold the prescription drug to people with all the health risk factors Patricia Schwaller had, but never included them in clinical studies.

"Does somebody who is 5'2" and 280 pounds have the same right to information from drug companies as someone who is not?" Watts asked.

All the jurors responded in the affirmative.

Watts asked jurors if they are against awarding a large verdict in civil case. Twenty-two people responded they were.

When asking jurors if they thought there were too many frivolous lawsuits only seven out of 73 thought lawsuit abuse was not a problem.

About 20 percent of the jurors said they could put a dollar amount on a life.

Over half had suffered a heart attack or had a close family member who did.

Watts held up for jurors the latest edition of the Record newspaper which has provided up-to-date coverage of the case.

He told the jurors that the U.S. Chamber of Commerce owned the paper and that it is the newspaper's job "to spin" the case for Merck.

Watts asked who among the panel has worked for large companies. Their responses:

  • 53 work for companies that employ more than 100 persons
  • 32 work for companies that employ more than 1,000
  • 12 work for companies that employ more than 10,000
  • Seven work for companies that employ more than 50,000

    Twenty-eight of the jurors claimed they suffer from high blood pressure or have a close family member who does.

    Eight said they are diabetic or have a family member who suffers from diabetes.

    Fourteen claimed they either suffer from obesity or have a family who does.

    Thirty five members on the panel said they believe a person's lifestyle is responsible for obesity and 29 thought it was hereditary.

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    1 Metropolitan Square
    St. Louis, MO 63102

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