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Early comments on Humeston defense verdict

One cannot draw too many conclusions from this case. As plaintiffs go, Frederick Humeston was a poor one. He had numerous health problems; he took Vioxx only intermittently for two months; and even if one assumes causation, his injury was relatively minor: Humeston is back at work and his supposed life-limitations could equally be ascribed to a bad knee as to his heart problems. (Studies show that juries—and neutral experts!—are more likely to find fault with a defendant when presented with more serious injuries. Sympathy is a powerful human emotion.) In addition, the fact that he was already in a dispute with his employer over a disability claim hurt Humeston's credibility, especially when he denied any stress from learning shortly before his heart attack that a PI was investigating whether he was faking his injury.

Still, one can draw some conclusions: a relatively educated jury will consider issues of causation if not overwhelmed by sympathy. Overstated expert testimony only goes so far without that sympathy. A jury with relevant employment experience is capable of seeing through the attempts by plaintiffs' attorneys to take e-mails out of context:

Neither [juror Nellie] Stetzer nor [juror Vickie] Heintz were swayed by the e-mails and marketing materials the plaintiffs provided in an attempt to prove Merck knew about Vioxx's risks but concealed them to make money.

"A lot of us were business people. We understood they needed to do sales training," Stetzer said. "I don't think Merck knew the dangers. I truly believe they thought the drug was safe." (AP)

[Juror Judy] Lamando said she wasn't moved by the inflammatory emails from inside the company or Merck's aggressive marketing of the drug. "We're all in business and that's what we do," she said. [...]

Ms. Heintz, the juror, said she felt Mr. Seeger "cherry picked" a few select emails to try and indict the company with them -- echoing the same phrase that Ms. Sullivan of Merck had used repeatedly in her closing statement Tuesday.

Juror Patricia Harley, 44, said the internal emails weren't a problem for Merck. "If someone peeked through all my emails, forget about it," she said. As to Merck's marketing: "That's business. Merck is in business to make money. You can't fault them for making money." [...]

Ms. Heintz also said she wasn't bothered by Merck's aggressive marketing of Vioxx or documents that showed the company calculating the loss in profits if the warning label were changed to reflect increased of heart attack. "Medicine is business," she said. "If I had a business I would calculate what the loss of one of my big products would mean´┐Ż This about making money. Merck doesn't do this because they are flower people." (WSJ)

The Ernst case in Texas, in contrast, had a relatively uneducated and inexperienced jury; featured a grieving widow; and had the unusual circumstance of Merck being tricked into vouching for the credibility of the plaintiff's surprise expert witness in its opening statement, which did much to deflate Merck's legitimate causation defense.

Of course, the Humeston jury, like the Ernst jury, was also capable of being influenced by irrelevant factors:

Heintz also praised Merck lawyer Diane Sullivan for making eye-contact with the jurors and said Humeston's attorneys were too abrasive. "I thought that was a big turnoff," she said.

On such game-show qualities are billions of dollars of shareholder value created or destroyed. (Theresa Agovino, AP, Nov. 3; Heather Won Tesoriero et al., "Merck Scores Major Victory In the Second Vioxx Trial", Wall $treet Journal, Nov. 3).

It's also too soon to tell how the trial bar will react to this verdict. (See Evan Schaeffer for one early reaction.) There will be other New Jersey cases before September 2006, and those additional datapoints will help plaintiffs' attorneys decide whether to file in New Jersey, where there appears to be a judge favorably inclined to them, or seek to use other state courts. And certainly, plaintiffs will try harder in the future to find a more ignorant jury. And don't expect ATLA to issue a press release quoting jurors from this case.

Update: More discussion at our November 4 post.



Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.