Next month, Merck & Co. will face off against Mark Lanier, a plaintiff’s attorney and Baptist preacher, in a south Texas courthouse in what is expected to be the first—and one of Merck’s toughest—fights defending its pain drug, Vioxx.
Merck pulled Vioxx from the market on Sept. 30 after its own study showed increased heart attack and stroke risk in patients who took the drug for more than 18 months. Some 3,850 Vioxx lawsuits have been filed in state and federal courts nationwide and thousands more are expected.
A Merck win in this case would discourage other lawsuits against the company. A loss, however, could embolden more plaintiffs to file suit. Analysts are so unsure about the cases that estimates of Merck’s Vioxx liability range from $4 billion to more than $20 billion.
In Texas, the company faces two major obstacles. The Southern Gulf Coast area is viewed as a friendly courtroom venue for plaintiffs’ attorneys suing big corporations. Plus, Merck is up against Mr. Lanier, an attorney who has successfully sued corporations.
Already, Mr. Lanier has performed his opening remarks for the Vioxx case in front of three different focus groups, each time winning, he says. Mr. Lanier represents Carol Ernst, the widow of Robert Charles Ernst, a 59- year-old triathlete who Mr. Lanier said completed a marathon three months before he died suddenly in his sleep in May 2001. He had started taking Vioxx for tendinitis about six months before.
Mr. Lanier says he mainly plans to frame this case around Raymond Gilmartin, who recently stepped down as Merck’s chief executive after 11 years. His opening statement to the jury will include a PowerPoint presentation with a big picture of Mr. Gilmartin, and this introduction: “This case is about Ray Gilmartin, who took a good drug company and turned it into an ATM machine for himself and for shareholders.” When he showed that to focus groups, Mr. Lanier says, “they were stunned at how much money Gilmartin made and how much the company concentrated on profits.”
James Fitzpatrick, an attorney at Merck’s main outside law firm, Hughes Hubbard & Reed in New York, says “comments like that are just an effort to distract from the issues in the case. The case has nothing to do with Mr. Gilmartin’s compensation. It’s about whether Vioxx had a role in Mr. Ernst’s death.” He won’t say whether Merck has conducted its own focus groups on its planned defense.
A 44-year-old father of five, Mr. Lanier is comfortable in front of an audience: he preaches weekly to hundreds at his Baptist church. According to Mr. Lanier, he has tried over 50 cases in Texas and has lost only five. He also says he’s won about six or seven of the cases he’s tried in the state court in Brazoria County where he will be trying the Vioxx case, and several more settled there during trial. In 1998, Mr. Lanier won a $115 million damage award from a jury against an asbestos maker on behalf of 21 steelworkers in the same county courthouse and before the same judge who will try the Vioxx case. (The asbestos case was settled for an undisclosed amount before an appeal was filed.)
Mr. Lanier “has that Texas ‘aw, shucks’ demeanor,” says Arthur Miller, a Harvard Law School professor who also consults for large corporations and has worked on the same side with Mr. Lanier in courtrooms. “He has the ability to communicate with people in a way that is understandable and believable,” Mr. Miller says.
Representing Merck will be Gerry Lowry, 46, a partner at the Houston powerhouse firm of Fulbright & Jaworski, where Mr. Lanier started his law career. A spokesman for Merck says Ms. Lowry is too busy preparing for the trial to be interviewed.
She was co-lead counsel in one of the biggest pharmaceutical industry wins, Bayer AG’s first Baycol case in 2003. Her partner in that case says Ms. Lowry is a master at questioning witnesses.
“It’s a real skill to be firm but respectful and to not attack somebody personally, and yet to firmly insist that the truth come out,” says Phil Beck, a partner at Bartlit Beck Herman Palenchar & Scott in Chicago and Denver.
In the Bayer case, also tried in a southern Texas state court, a sympathetic 82-year-old man claimed Bayer’s cholesterol drug Baycol caused a disabling muscle disorder. The man showed up every day during the trial in a wheelchair, but Ms. Lowry, questioning his wife, got her to admit that her husband doesn’t use a wheelchair outside court.
Merck has vowed to fight every case in court. The pharmaceutical giant acknowledges that after 18 months of daily usage, Vioxx has an increased risk of heart attack and stroke. Merck is expected to argue that Mr. Ernst suffered from longstanding cardiovascular disease. Moreover, Mr. Ernst’s death certificate says he likely died of an arrhythmia—malfunctioning electrical signals controlling the heartbeat. “This is not a heart attack or stroke case,” says Jonathan Skidmore, a partner of Ms. Lowry who is involved in the case. He says there is “no reliable evidence” that Vioxx is associated with arrhythmias.
Mr. Lanier acknowledges that Mr. Ernst had thickening and hardening of the arteries, but he argues that this is common among men his age. “The deadly Vioxx thickened the blood flow through Bob’s heart vessels,” Mr. Lanier plans to tell jurors. “The lack of blood flow put Bob’s heart into a killing arrhythmia causing the same sudden cardiac death that happened to thousands of other Vioxx victims.”
In depositions with company executives, Mr. Lanier begins some questions with “Please tell the jury… .” Because Merck is unlikely to make many senior executives available during the trials, the videotaped testimonies may be the only statement the jury hears from them—although a Merck executive will be in the courtroom for the trial’s duration. Mr. Skidmore said it hasn’t been decided which Merck executive will attend.
Mr. Lanier asked Mr. Gilmartin during a deposition about an August 2000 email Mr. Gilmartin wrote to Merck’s head of sales about “Bossidy,” as in Lawrence A. Bossidy, a Merck board member. “Bossidy is on Nantucket … His friends are all on Vioxx and they are all concerned after hearing about a report given at Vail by an orthopedist” that there are “increasing cases of stroke with Vioxx.”
Mr. Gilmartin continues, “I told them that we’ve had no issues like that with the drug” and that a recent study of Vioxx in lower-back pain patients “confirmed safety, particularly with regard to CV events,” or cardiovascular events.
Mr. Lanier said during the deposition that the study actually showed that the Vioxx users had six episodes of heart attacks or strokes while the placebo users had only one. Mr. Gilmartin, while not disputing the accuracy of the statistic, responded that the difference didn’t reach “statistical significance,” the point at which a result is not likely due to just chance.
Then Mr. Lanier asked Mr. Gilmartin, “have you got $6 on you? I’m going to give you a dollar and you give me the six. It is not statistically significant in the difference. What do you think, are you in or out?” Mr. Gilmartin replied: “I’m not sure that I can come up with $6.”
Although the upcoming case will involve complex medical testimony, it won’t be boring, Mr. Lanier says. “Even cases I’ve lost I’ve never failed to keep the jury entertained,” he says. “There will be drama, there will be entertainment. I have several ideas, depending on who the jurors are.”