Vioxx jurors call it quits for the night

Steve Gonzalez Mar. 26, 2007, 4:20pm

Jurors deliberating in Madison County's Vioxx trial decided to call it a night at around 9 p.m. on Monday. The panel appears close to a reaching a verdict, however the foreman said the group wanted to "sleep on it."

They will resume at 9 a.m. Tuesday.

Earlier in the afternoon two alternate jurors excused from duty said that it would take a lot of convincing for them to rule in favor of the plaintiff.

They also said they would be shocked if the remaining jurors came back with a plaintiff's verdict.

The male jurors, who asked not to be identified, spoke openly about their experience and their perspectives for about 30 minutes after being excused.

Jurors were sent this afternoon to decide whether Vioxx caused the sudden heart attack death of 52-year-old Patricia Schwaller in 2003. She was 5 feet, two-inches tall and had several health problems, according to testimony. Her husband Frank Schwaller filed suit in 2005.

One of the jurors said that Patricia Schwaller had too many health risk factors for him to find proximate cause. He works at Olin Corp. -- the same place where Frank Schwaller was employed before he went on disability,

The other juror said there was "no way" he could find for the plaintiff.

The excused jurors also said that testimony from a videotaped plaintiff's witness, Dr. Jerome Aborn, raised credibility issues.

They also had doubts about testimony from Dr. Mark Furman. Furman testified that Schwaller's risk factors, including morbid obesity, sedentary lifestyle, high blood pressure, high cholesterol and diabetes, played only a 1 percent factor in her risk for heart attack.

He also lost credibility with these jurors when he failed to mention Schwaller's obesity and diabetes during his testimony. During cross examination he said that was "an oversight."

The jurors were also troubled by plaintiffs' attorneys selective display of portions of emails between Merck officials. They said they only got the full context of the meaning of the communications after defense attorneys put things in perspective.

Not all was bad news for the plaintiffs' team. The jurors believe the plaintiffs' attorneys did a superior job during cross examination, but not well enough to overcome the totality of evidence.

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