Local attorney John Driscoll of St. Louis’ Brown & Crouppen may have hand-carried Frank Schwaller’s Vioxx claim to the Madison County Courthouse, but it is the confident, experienced out-of-state legal duo waging this court’s first such battle.
Attorney Andy D. Birchfield, Jr. of Beasley, Allen, Crow, Methvin, Portis & Miles in Montgomery, Ala., has been filing Vioxx suits since 2001, years before it was removed from the market in September 2004. He’s appeared on MSNBC, CNBC, NPR and on CBS’s 60 Minutes attacking Merck for “concealing” information about the drug’s safety.
Fresh off a federal court defeat in December, Birchfield is laying out for Madison County jurors pretty much the same argument he has in the past—that Vioxx caused heart attacks and that “Merck worked hard to keep the truth quiet.”
As he has in Madison County and elsewhere, Birchfield tells jurors that Merck ignored safety studies because it needed “a blockbuster drug.” He says Merck had several drugs coming off patent and was looking for another big revenue source.
In December, a federal jury in New Orleans rejected a Tennessee man’s claim that Vioxx caused his heart attack. The seven-member jury ruled against Birchfield’s client saying that Merck did not fail to adequately warn Anthony Dedrick’s doctors of any known risk posed by Vioxx, or that the lack of such a warning was a cause of Dedrick’s heart attack.
Dedrick, like the subject in Madison County’s trial, had other risk factors for his heart attack, including tobacco use, high blood pressure, high cholesterol and diabetes. Dedrick also had a history of cocaine use.
Birchfield told the federal jurors that his client’s criminal history, cocaine use and health risk factors were irrelevant.
The fact that the decedent in Madison County’s Vioxx Trial, Patricia Schwaller, used marijuana, will not be introduced to jurors.
Attorney Mikal C. Watts of Corpus Christi, Texas, is the plaintiff’s team anchor. Considered one of the most successful trial lawyers in Texas—boasting more than $1 billion in verdicts since 1997 and working for plaintiffs with “lightning speed”—his role in Madison County so far has included sifting through potential jurors in search of sympathetic ones.
As detailed in a May 2004 Wall Street Journal (WSJ) report, Watts has mastered the art of jury selection.
He also “worked the court of public opinion,” the article stated, feeding information to the U.S. and European media about his case against the German company Bayer over the cholesterol-lowering drug Baycol. Watts tried the first Baycol product liability case in his hometown court.
“It was part of my strategy to affect the stock price, which I was very successful at,” Watts stated in the WSJ article.
Among other notable circumstances surrounding the case, Watts attempted to secure a favorable settlement from Bayer by telling defense counsel that he had “seated a terrible jury that is going to inflict great harm on Bayer,” according to the Wall Street Journal article.
The report stated that Watts wrote in an email to Bayer’s lawyer:
“My jury selection methodology categorizes jurors into four basic categories:
(1) green—plaintiffs’ ringers—i.e., great plaintiffs’ jurors;
(2) blue—good jurors for the plaintiff
(3) red—good jurors for the defense; and
(4) black—defendants’ ringers—i.e., great defendants’ jurors.
“My notes show we seated a jury of 8 greens, and 4 blues . . . . I cannot understand how, having seen the jury, it is going to do Bayer’s master settlement strategy any good, to get its a—kicked here,” Watts email stated, according to the WSJ.
Rejecting a $250,000 settlement offer, Watts ultimately lost the $500 million case for his 82-year-old client Hollis Haltom. As reported in the WSJ, Watts said the offer was “of no use to his client because the law firm had already spent $320,000 preparing for trial, and the client was to get compensation only after its costs had been covered.”
After the verdict, a disappointed Haltom said he was never aware of the settlement offer. “We might have taken it,” Haltom told the WSJ.
Watts also is renowned for taking on Ford Motor Co. in product liability cases in his home state. He has won more than $100 million in three separate claims.
A Ford attorney was quoted as saying, “Mikal Watts is engaged in this jihad against Ford, but is it really in the best interests of his clients?”
“There’s a war going on right now between Mikal Watts and Ford, but Ford is not making the war,” David Prichard of San Antonio told a San Antonio newspaper.
Prichard also told the newspaper that the Ford verdicts will be appealed and that none of the plaintiffs have been paid a nickel.