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Cona and McDarby Vioxx juries picked

Almost 300 people called to jury duty answered 167 questions on a 25-page screening form; ten have been selected. And the AP reports that five of the ten jurors are casino workers. You may recall that the one dissenting juror in the Humeston defense verdict was a resort worker (New Jersey state juries, unlike federal juries, need not be unanimous), and that Merck has had more success with educated jurors with experience with business documents. (Jurors may drop out throughout the trial, and the case could be decided by as few as six.)

You may also recall that Judge Higbee consolidated two plaintiffs' cases in a single trial, to the detriment of Merck (Dec. 8, Feb. 24), who expressed concern that the jury would be less likely to consider individualized issues of causation. And there are individualized issues in this case. 59-year-old Thomas Cona had high cholesterol and blood pressure; moreover, Merck argues that his pharmaceutical records don't support his claim that he took Vioxx for more than eighteen months. (Moreover, he continued to take Vioxx after his 2003 heart attack.) 77-year-old John McDarby had health issues including hardening of the arteries and diabetes. Both suffered non-fatal heart attacks. (Jeff May, "Jury Will Get Twice The Vioxx", New Jersey Star-Ledger, Feb. 28).

Opening arguments are Monday, and the case should go to the jury in late March. See also our previous Vioxx litigation coverage.



Rafael Mangual
Project Manager,
Legal Policy

Katherine Lazarski
Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.