Merck is returning to Texas next week, where it lost its first Vioxx lawsuit in a state court, to fight its third case – now in a federal court – a legal battleground that could be more receptive to the company, say legal experts.
Kevin Duckworth, an attorney for Jenner & Block who has defended drug companies but is not involved in the Vioxx trials, said that Merck should be “excited” about fighting the next battle in federal district court. “Oftentimes state court judges are not listening to them.”
Jury selection begins under Judge Eldon Fallon in the wrongful death case of plaintiff Evelyn Irvin Plunkett, in federal district court in Houston on Nov. 29. Plunkett’s husband Richard Irvin died in 2001 from a fatal heart attack after taking Vioxx for about one month, according to plaintiff attorneys Jere Beasley and Andy Birchfield. Plunkett of St. Augustine, Fl. blames Vioxx for her husband’s death, though Merck has insisted all along that Vioxx did not kill anybody.
Fran Miller, professor at Boston University’s schools of health and management, said that federal court is preferable to state court for Merck because “Merck would like to divorce itself from any possibility that there’s a home court advantage for the plaintiff.”
Anti-corporate sentiment in the Angleton, Texas jury pool may have contributed to Merck’s loss in the first case, where the plaintiff was successfully represented by Houston-based attorney Mark Lanier in a wrongful death suit in August. Merck (up $0.30 to $30.81, Research), the second-largest American drug maker, could face its nemesis Lanier in a state court once again. Lanier said he is taking on Merck in its home state of New Jersey, where Merck has already won a case and where about half of the approximately 7,000 Vioxx lawsuits have been filed. Lanier is representing Tom Cona, a former Vioxx patient, a heart attack survivor and one of seven possible plaintiffs selected by Judge Carol Higbee for the case.
Lawyers representing Merck and Plunkett in the federal case are under gag order and said they could not comment.
Federal vs. State
Merck pulled its arthritis painkiller Vioxx off the market on Sept. 30, 2004 after a clinical study suggested an increased risk of heart attacks and strokes in patients who took the drug for at least 18 months. However, Merck says the study did not establish any increase in risk of death from Vioxx. Nevertheless, approximately 7,000 lawsuits against Merck have been filed since the withdrawal. The first three cases involve patients who took Vioxx for less than 18 months.
Merck lost its first case, in Superior Court in Angleton to plaintiff Carol Ernst. The plaintiff’s husband Robert Ernst was a Vioxx patient when he died in 2001 from a heart attack. Ernst, a mother of four adult children who blamed Vioxx for her husband’s heart attack, was awarded $253 million by the jury, though state law capped her damages at $26 million plus interest, said Lanier.
But Merck won its second case, in Superior Court in Atlantic City, N.J. on Nov. 3, against Frederick Humeston, a 60-year-old Vietnam veteran and postal carrier who blamed Vioxx for his non-fatal heart attack in 2001.
In the Angleton case, Lanier successfully portrayed Merck to the jurors as a shady company that deliberately concealed negative information about Vioxx. In the Atlantic City case, Chris Seeger, who represented Humeston, failed to convince jurors that Merck had engaged in wrongdoing, but Merck lawyers managed to pick apart Humeston’s integrity, weakening his case.
Lanier, a part-time preacher with five children, appealed to the anti-corporate attitude of the Angleton jury pool. But that attitude is more representative of Angleton than Houston, said experts, who described the Houston jury pool as better educated and more urbane than Angleton, a town of 19,000 located just 30 miles south.
“Houston has some sophisticated people who could readily understand the kind of causation issues that Merck has out there,” said Sheila Birnbaum, a lawyer with Skadden Arps who has defended drug companies but not Merck. “They’re not the same jurors in both places, Angleton and Houston, even though they are all Texans.”
Also, Judge Fallon’s federal-level interpretation of the law could be more sophisticated, and therefore more conducive to Merck’s legal strategy, which relies heavily on scientific data to suggest that Vioxx is free of blame.
“Most large publicly traded corporations would much rather be before a federal judge, versus being before a state judge, for what appear to be obvious reasons: federal judges have a tendency to read more, be more up to speed on the law, and interpret the law in a more sophisticated manner,” said Duckworth, the attorney with Jenner & Block.
Lanier in New Jersey
Lanier, the lawyer who defeated Merck in Angleton, is part of a legal “dream team” that is representing a consortium of some 20,000 plaintiffs. Lanier and other attorneys are trying to file all their cases in state court, and are resisting Judge Fallon’s attempts to consolidate state cases in federal court.
Lanier is getting ready to take on the drug giant in Atlantic City on Jan. 30, 2006, where Merck won the second Vioxx case. Lanier’s plaintiff, 59-year-old Cona from Cherry Hill, N.J., was one of seven possible plaintiffs selected by Higbee for the next case in New Jersey Superior Court. All the plaintiffs have one thing in common: they took Vioxx for more than 18 months, a crucial detail in the ongoing litigation. In previous cases, Merck has based much of its defense on the fact that the plaintiffs took Vioxx for less than 18 months, because the study that prompted the withdrawal showed that risks emerged after that time.
“This case will stop Merck from parroting out the false 18-month drivel,” said Lanier, whose client had a heart attack after two years of taking Vioxx.