Dan Ball
Judge Stack
Those who dread jury duty would change their minds if they watched the Vioxx trial in progress before Madison County Circuit Judge Daniel Stack.
The jurors clearly enjoy the job of deciding whether to hold drug maker Merck liable for a heart attack that killed Patricia Schwaller.
The jurors clearly get along. Awaiting duty in the courthouse basement Tuesday, March 20, they made a happy racket like an office party.
They filed into court smiling and ending conversations. They filed out smiling and starting conversations.
Each time testimony stopped so attorneys could argue quietly at the bench, a pair of jurors tilted together and talked all the way through.
At day's end Stack announced a schedule change and jurors whooped. One cried, "You're my kind of judge."
The merriment inspired an attorney to wave a thick report at the jury and say, "But you have a reading assignment."
When the laughter died down a juror said, "Can we get the abstract?"
The attorney said, "You catch on fast."
That's good, because between smiles and laughs they have a tough job.
Tuesday they observed a tense struggle between plaintiff attorney James Wright and expert defense witness Dr. Robert Saltman.
Saltman, a practicing internist and endocrinologist in St. Louis County, is affiliated with Barnes Hospital.
All afternoon Wright tried to coax testimony from Saltman to prove that Merck purposely distorted research.
Saltman never gave the answers Wright wanted to hear.
Wright told Saltman the Food and Drug Administration wanted the label to recommend caution for those with cardiovascular risk.
Wright asked if the label would have warned Schwaller's doctor not to prescribe Vioxx.
Saltman said, "That's not really what it says." He said doctors always use caution.
Wright said, "So warnings mean nothing?"
Saltman said, "That's not what I said."
Wright lifted a big Styrofoam panel bearing an excerpt from a Vioxx study. He started reading but made a mistake.
Defense attorney Dan Ball heckled, "Come on, you can read it."
Ball sprang from his seat, grabbed the panel and said, "I'll hold it because I want you to read it correctly."
Wright said, "I'll read it 10 times."
Wright finished reading the proposed label and asked Saltman what harm it would have done if the FDA had put it the way they wanted.
Saltman said none.
Wright said it would have harmed Merck $1 billion a year.
He said Merck estimated a $2.5 billion profit with a mild label and $1.5 billion with a warning.
He said, "They didn't tell you about that?"
Saltman said no.
Wright asked if they told him they wanted to remove a gastro intestinal warning so sales representatives could say Vioxx was milder than Celebrex.
Saltman said no.
Wright said research showed Naproxen with a proton pump inhibitor was as effective as Vioxx.
He said, "Naproxen is a whole lot cheaper than Vioxx, isn't it?"
Saltman said, "Right."
Wright said if it was cheaper and the effect was the same, he needed to tell the jury.
Saltman said it wasn't necessarily cheaper with a proton pump inhibitor. He said there would be less gastro intestinal effect.
He said, "Is it better to take two drugs or one drug?"
Wright asked if Merck told him that while they worked on the label they offered a job to a high FDA official.
Ball objected. Stack sustained, calling it immaterial.
Wright started to ask it again. Before Ball could object, Stack held up a hand and said, "I think that was a question for another witness."
Wright asked Saltman if he agreed that it was improper and misleading to tell the public one thing and tell the jury the exact opposite.
Saltman said, "That's a general question. I'm not sure what you're referring to."
Wright asked if Merck told him that when they changed the label they prepared answers to doctors' questions for sales representatives.
Saltman said no.
For his next question Wright chose the verb, jigger. He never finished the question. Ball objected and Stack sustained.
Wright ran out of questions and the struggle ended.
Ball rose and asked Saltman if he looked to sales representatives for information.
Saltman said no. He said, "Certainly not when controversy comes up."
Ball said, "You tune them out?"
Saltman said, "We more than tune them out."
Ball asked if doctors consider the entire label. Saltman said yes.
Ball asked if doctors had information that people like Schwaller should exercise caution. Saltman said yes.
With that the day ended.