Beasley, Merck set for Vioxx Battle

posted on:
November 17, 2005

author:
Staff

Since Jere Beasley broke his arm about a month ago, he’s had trouble completing some of the more routine tasks in his Montgomery law office.

But the former lieutenant governor and one-time gubernatorial candidate said he enjoys a good challenge.

He’ll get one in two weeks in the first federal Vioxx case against drug maker Merck and Co., accused of suppressing scientific evidence that the painkiller Vioxx was potentially lethal. In the case, Beasley will go head-to-head with one of the nation’s top lawyers, Phil Beck, who represented President Bush in the Florida “hanging chad” case during the disputed 2000 presidential election.

“It’s David versus Goliath, but that doesn’t bother me,” Beasley said last week. “I’ve been an underdog my entire life.”

But during a news conference about the trial Wednesday, Beasley said there was an intimidation factor in facing Beck.

“It scares me slap to death,” he said.

In 1978, former Gov. Fob James soundly defeated Beasley in the Democratic primary, putting an end to his political career.

“Fob was a good friend of mine. He did me a favor,” Beasley said. “I wasn’t a very good politician, to be candid. I’m a much better attorney.”

He’ll have to be on Nov. 29 when the trial begins in Houston, just 40 miles north of the state court where Texas jurors in August slapped Merck with a $253 million verdict in the nation’s first Vioxx trial. Texas caps on punitive damages will cut that amount to no more than $26.1 million.

But Merck won the second battle in a New Jersey state court earlier this month when a jury absolved it of liability, finding that the company disclosed proper warnings about Vi-oxx risks.

Jonathan Skidmore, a member of Merck’s legal team, said the company won the New Jersey case with facts and science, and will use that same strategy in the federal trial.

“We feel at the end of the day, the company, by continuing to tell the truth, and continuing to tell a very strong scientific story, has confidence going into this trial,” he told The Associated Press.

In the tiebreaker case, Beasley is representing the family of Richard Irvin, who died in May 2001, after experiencing a blood clot in a main artery of his heart. At the time, he had been taking Vioxx, known to lead to blood clots, for about a month, Beasley said.

Beasley’s firm has filed almost 300 lawsuits against Merck. The firm, which started with one employee in 1978 and now employs 40 attorneys and 240 staff, has about 9,000 more lawsuits waiting in the wing, Beasley said.

He said the federal case, filed on behalf of Irvin’s widowed wife, Evelyn Irvin Plunkett, a retired educator who lives St. Augustine, Fla., will be war.

“Kind of like Auburn and Alabama, or maybe Texas and Texas A&M. I guess that would make us Texas A&M,” Beasley joked, referring to A&M typically being an underdog in the annual college football rivalry.

Civil litigators say Merck could enter the federal forum with an edge. Federal courts are often viewed as business-friendly and disciplined while less tolerant of attorney theatrics and flimsy evidence than state courts. Also, there will be eight jurors rather than 12 who must render a unanimous verdict, Beasley said.

Merck faces about 7,000 state and federal lawsuits so far over the drug the company withdrew from the market last year when a study showed it doubled risk of heart attack or stroke if taken for 18 months or longer.

Beasley said one of Merck’s main witnesses in the New Jersey case, Dr. John Michael Gaziano, an associate professor of medicine at Harvard University, was supposed to testify that short-term use of Vioxx does not cause heart attacks. But the testimony would have contradicted a study by his own university, so he withdrew, Beasley said.

Gaziano was unavailable for comment Wednesday.

Analysts say Merck could pay billions over Vioxx, through jury verdicts, settlements and the cost of paying its legal team.

But Beasley wants Merck to first pay for the death of Irvin, something analysts say will be an uphill battle given the quality of Merck’s legal team.

“They’re loading up,” Houston litigator Scott Lassetter told the Associated Press. “They’re taking a gun to a knife fight. They’ve got to win this one.”

While Beasley revels in the underdog role, he said he’d likely have at least one advantage he hasn’t had for the past month—the use of his left arm.

“I’m hoping to get out of this cast by then,” he said.

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