It is not clear what is more interesting the legal problems in the trial over Merck’s osteoporosis drug Fosamax or the alleged assaults occurring in the jury room during deliberations. United States District Judge John Keenan in Manhattan was forced to issue the novel “time out” order this week and send home the eight men and women on the jury after lawyers heard yelling from the jury room and a juror alleged that she had been physically threatened and had a chair thrown at her.
The judge took a conciliatory tone and simply noted “It’s not unusual during jury deliberations that people disagree each other. There seems to be some disagreement here. I’m going to give you a cooling-off period.” Well, yes, it is not unusual for disagreements to occur, but WWF chair scenes?
Timothy O’Brien, the lawyer for Boles has already called for a mistrial — the assumption may be that a long deliberation is favoring the company. Perhaps for the same reason, Paul F. Strain, a lawyer for Merck (yes, Merck’s lawyer in the case is named Mr. Strain), opposed the mistrial by portraying the complaining juror’s account as unreliable and nothing that the other jurors do not support her story. It would seem that the company suspects a possible single holdout in a defense verdict. However, it also raises the question of the viability of the juror composition if one of the jurors is accused of making up such an account. To replace just her with an alternate juror would be controversial if it produced a ruling for the company.
The judge has already indicated that he is moving toward a mistrial unless the jury could reach a consensus. They might first have to put the furniture down.
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