6 septembre, 2005 15:48
The Vioxx Verdict: Q & A with Mark Lanier
A Texas Lawyer Online Discussion
Updated Sept. 6, 2005, at 3:02 p.m. CDT
Houston trial lawyer Mark Lanier won a nearly quarter-billion dollar verdict against Merck & Co. Inc. in the nation's first Vioxx trial. He answered readers' questions in this Texas Lawyer online discussion Tuesday, Sept. 6, from 2 p.m. to 3 p.m.
Mark Lanier*
Lanier Law Firm
What was the biggest obstacle you perceived going into the trial?
-- Texas Lawyer
Mark Lanier, The Lanier Law Firm, Houston: Causation. Bob Ernst's autopsy report stated that the cause of death was arrhythmia secondary to coronary atherosclerosis. While Bob had some type of clot or thromboemboylic event that caused the arrhythmia, Merck was splitting hairs saying that no studies ever linked Vioxx to arrhythmias. While this assertion was patently wrong, it could have been easily confusing to a jury.
What lessons does your trial hold for other plaintiffs and defense attorneys?
-- Texas Lawyer
Lanier: Work your tail off! The truth will come out.
When did you decide to call Dr. Araneta, the coroner?
-- Texas Lawyer
Lanier: After the defense opening, when the defense lawyers began misrepresenting Dr. Araneta's report. I wanted to find out what she actually meant, and I wanted Dr. Araneta to tell her side of the story to the jury and not Merck's version of the story.
It seems that your presentations to the jury draw on research regarding how people learn. What are some techniques lawyers can adopt to educate their juries that they aren't using now?
-- Texas Lawyer
Lanier: 1. Read the right books; 2. Go to the right seminars; and 3. Don't stop learning!
I read the Wall Street Journal account of your trial tactics. I was impressed with your preparation at all levels; from reviewing jury questionnaires to hiring a consultant to observe the jury and give you feedback during trial. Once you accepted the case, about how many hours per day did you spend on the case through trial, and how many attorneys (not including consultants, paralegals, etc.) assisted you in discovery, and at trial?
-- Tom Klein, Wilson, Sonsini, Goodrich & Rosati
Lanier: I spent 20 hours a day during trial. I spent 15 hours a day the week before trial, I had countless help in discovery (my firm and others). During trial I had about 15 lawyers working behind the scenes.
For Texas firms handling Vioxx cases, what should already be done at this point?
-- Bill Ogletree, Ogletree Abbott
Lanier: Figure out where to file cases. Make sure you are filing ahead of the statute of limitations. Find a good lawyer to refer them to if need be!
What would you do differently if you were starting your case today?
-- Karen Hurwitz, Karen Hurwitz & Associates, Legal and Behavioral Consulting
Lanier: Take a few more depositions... Ask a few more questions of several Merck witnesses... Or maybe not -- the result was pretty decent!
This case was supposed to be "unwinnable" because Ernst died of an arrhythmia, not a heart attack. Do you truly believe Vioxx contributed to his death, or does it only matter that you convinced a jury of such?
-- James
Lanier: Not a doubt in my mind. Everyone agreed the arrhythmia was caused by "ischemia" or inadequate oxygen to the heart. Ernst had 50 - 75 percent blocked arteries. Those are open 25-50 percent. They were open enough that he ran marathons, competed in triathlons, rode a 62 mile bike race a week earlier, ran 5 miles that day. His heart got plenty of oxygen for those stresses. So the question is: either he had a clot (our position) or for some unknown reason while sleeping his heart's oxygen requirements exceed the needs while running a marathon. Merck took the absurd position that Ernst's heart was having excessive oxygen requirements while sleeping. They actually had experts say that Ernst must have been having really bad dreams or sleep apnea. What is more likely, a clot?
Or bad dreams causing the heart to need more oxygen than running a marathon?
What did you think of the Wall Street Journal's depiction of the verdict in their cover story?
-- Jason Binford, Haynes and Boone, LLP
Lanier: WSJ is a business magazine, never too friendly to the plaintiff's bar! They didn't give the jury full credit for understanding the case.
What piece or pieces of liability evidence did the jury consider most important in their deliberations?
-- Anonymous
Lanier: The sales documents on liability. The medical textbooks on causation.
How was Merck able to appeal mid-trial?
-- Brian Zimmerman
Lanier: Merck tried to mandamus the judge's decision to allow the testimony of the coroner, claiming surprise. We had listed her by title, but not name, supplementing once the PI's found her in Abu Dhabi. Merck had designated her themselves, which made the "surprise" argument ring a bit hollow.
What are the right books? And what are the right seminars?
-- Brian
Lanier: I will give an ATLA seminar in NYC on deconstructing Ernst on September 27. It is a good one!
I know the list must be long but which select books would you recommend?
-- Zollie Steakley, CCHDD
Lanier: Topol has great books on cardiology. One of the best we used was the Merck Manual itself. Rubin on pathology gave us the reference that for someone to die as Ernst did in his sleep, the arteries must be blocked over 90 percent.
On trial in general, read Moe Levine for argument, read Cliff Atkinson, [Beyond Bullet Points] for presentation, and read everything Spence has written.
How do you prepare a jury for the fact you are asking for "hundreds of millions of dollars"?
-- Mike Swaim, Swaim Law Offices
Lanier: Plainly in voir dire. Say it (practice in front of a mirror if need be). And don't ask unless you believe you truly should get it.
What has the media been most inaccurate in reporting this trial or its results?
-- Fred Bowers, Bowers Law Office
Lanier: Hi Fred! The media has acted like the jury were plaintiff's jurors. They weren't. The judge was a Bush appointee. We had 11 Republican jurors.
They weren't what you or I would pick normally, but they were a "hangin'
Recognizing that press coverage & a plaintiff's verdict could be very damaging, was Merck willing to negotiate prior to suit? prior to trial? If so, did they make any legitimate offers to avoid the press coverage?
-- J. A. Luce, Boyd-Veigel, P. C.
Lanier: Merck never (to this day even) offered a dime.
Many firms around the country are using fairly restrictive criteria for accepting Vioxx cases -- some won't take cases involving people over 55. Do you think that representing clients in their 60s or 70s would present such significant causation issues that they should not be taken? How would you address age as a factor?
-- Timothy Devereux
Lanier: I would take the cases regardless of age as long as there is clear disease and the drug was taken at least a month.
Did the the caps on damages make you pause in taking this case on? Why did you still take it?
-- Jill Weinberg, Weinberg Law Firm
Lanier: I did not hesitate with the caps. I put most of my cases up north out of my New York office where the caps will not hurt me. If this was a one shot case, I would not have taken it, but this is one of many for us.
What do you believe is the best predictor in determining when and why a jury will award significant exemplary damages like they did in this case?
-- J. Hicks, Karel & Associates, P.C.
Lanier: Two things: 1. egregious facts; and 2. defense lawyering that reflects an ongoing callous approach.
Do you have any feedback from the jury when they learned about the caps on punitive damages in Texas (less than 1% of what they awarded)?
-- Fred Bowers, Bowers Law Office
Lanier: Most jurors knew about the caps. They felt very free to award a "message amount" because they knew it would get scaled back.
Some of the jurors actually thought the actuals were capped and tried to move the actual award into punitives. The other jurors stopped that.
Are you familiar with the Texas AG suit against Merck & Co. and what if any impact did that have on your litigation?
-- Will Hughes, Adams & Graham, LLP
Lanier: I am familiar with the suit. I have been contacted by a number of non-Texas AG's to take their state suits against Merck. I believe the suits have merit. I believe there are some additional cause of actions and damages that Texas has not yet sought.
Can you disclose what Merc's last settlement offer was before the verdict was read?
-- West Short, West Short & Associates, P.C.
Lanier: Zip, zero, nada... Said they would never pay a dime.
I was contacted by a survey company right before the trial about my opinions, I live in Brazoria County. How did the results effect your jury choices?
-- Sheri
Lanier: Not sure I know what you mean... We wanted a jury that was strong on crime. We tried the case like a criminal case.
Describe a borderline acceptable Vioxx case.
-- Bill
Lanier: I want heart attacks/ stroke or other serious cardiovascular events (sudden cardiac death, etc) with at least a month on Vioxx. The event should have occurred with two-to-three weeks of taking the drug.
I read that defense counsel read his opening statement. If so, what defense mistakes were made that played to your strengths and strategy?
-- Robert Alexander, Alexander Law Firm
Lanier: Yes they read it (but they did a good job reading!) That helps in a sense, but can hurt as well. They seem more "scientific" because they were boring. We had to make sure we didn't look like Saturday morning t.v. The defense also followed a script. Once we realized that, we changed our game plan a lot to see if they could adjust on the fly. It was hard for them.
What effect do you think the techniques of Merck's attorneys had on the jury (i.e. the hounding about the plaintiff not knowing her husband's kids from previous marriage)?
-- Jill
Lanier: Jury did NOT like it. Hard to be sugary sweet one moment, mean as a hornet the next without someone thinking you're disingenuous.
Do you see this verdict as having any further-reaching impact on the way that pharmaceutical companies approach the defense of multi-plaintiff products cases?
-- Ron Brandt, Bank of Texas
Lanier: I don't know. Merck's M.O. is to discredit anything that conflicts with them. They discredit scientists who disagree, discredit judges who disagree, discredit jurors who disagree, discredit me (see their closing argument -- more of it was anti-Mark Lanier than pro-Vioxx). Now they are even discrediting their own lawyers!
How does your faith in Christ impact your decisions both in your job and day-to-day life?
-- Jeramy Skaggs, Ramey & Flock
Lanier: Big time... It is why I do what I do, and how I have enough confidence to accept the results! I try to do right and trust the results will work out.
How important was media relations to your trial plan, and did you use a media consultant?
-- Anonymous
Lanier: No media consultant for me... They had mega-consultants working.
I was open with the media.
Did you voir dire the jury on tort reform, and, if so, how many panelists were disqualified for cause?
-- Michael
Lanier: Yes I did. Not many were struck for that.
Are you accepting cases wherein the client sufferred a brain aneurysm after taking Vioxx for 5 years? Also, what date are you using as a statute of limitations?
-- Jennifer Kahn, The Kahn Law Firm
Lanier: Yes if it's a clot aneurysm. No if it's a bleeder.
For statute of limitations, I use the September 2004 date where Merck pulled the drug.
Did Merck attempt to remove the Ernst case to federal court? If so, how were you able to keep it in state court? Generally, do you have a preference between state & federal?
-- Timothy Devereux
Lanier: No they didn't try removal. I had them in state court before they started removing...
Does this mean Elton John will be playing at your Christmas party this year?
-- Dean Blumrosen, Law Office of Dean M. Blumrosen
Lanier: I wish Deannie... Looks like James Taylor, Gloria Estefan, or Dolly Parton...
I'm sure this has been reported, but I have not yet read it. What was the ultimate verdict awarded by the judge after the caps were applied?
-- West Short, West Short & Associates, P.C.
Lanier: Judge hasn't put verdict into judgment...
A 57 year old male dies four years ago of a heart attack after taking Vioxx for 16 months for back pain. The autopsy says "myocardial infarction due to coronary artery occlusion due to severe athereosclerotic heart disease." First, when does the statute of limitations run? Second, does the fact of coronary heart disease mean that Vioxx didn't cause the heart attack?
-- Phil Maxwell
Lanier: You can take that case... Statute of limitation starts with the September 2004 Merck pull date.
Which argument did the Merck defense present to you that you found toughest to overcome?
-- Derek
Lanier: Merck argued that Vioxx had to be "the" cause not "a" cause.
As a law firm administrator, I'm concerned we're missing a good opportunity to get the word out effectively to Texans and others about the imprudence of tort reform. The verdict is, in my opinion, one of the best opportunities to do so that I have seen and that we may see for a long time to come.
It's going to take more than well-written, one-time editorials in the major newspapers to get this right message out. Do you know if more is being done to communicate the importance of this story?
-- John Rudd, Cole, Cole & Easley, PC
Lanier: I'm shouting it from the roof tops... Get others to shout as well...
Why do you think Merck took the "risk" of trying this case instead of negotiating a "confidential" settlement?--thus avoiding the negative press(& verdict) which has led to more lawsuits.
-- J. Luce, Boyd-Veigel, P.C.
Lanier: Ego....They didn't think I could win... They were wrong...
With your win on causation, what are your thoughts on taking a diabetic client or a smoker?
-- Zollie Steakley, CCHDD
Lanier: Vioxx shoves you toward a heart attack. If you are miles away, the shove may not push you over the edge. If you are one pork chop away from a heart attack, you need protection from the shove more than most folks!
A lot was written in the paper about the graphics used in your presentations. Did you hire outside firms, or were they all in-house?
-- Eric
Lanier: Moi! (with a little help from Cliff Atkinson)
I'm a Southern Baptist trial lawyer and I've quit going to church because they run off non-republicans with their official and un-official rhetoric. How do you deal with that?
-- Anonymous
Lanier: Come to my church! I just smile and let them know that I take offense, Jesus stood with the little folks against the power structure and got himself killed over it. I go to church for me, not for those folks who don't know any better.
To what extent do you believe that there are still documents out there waiting to be discovered?
-- Eric Abramson, Michael B Serling. P.C.
Lanier: Hello, Eric! I think there are some more, but the ones we've got are so darn good, it's hard to be motivated to look for more.
What about the prescribing doctor, how do you handle him? Do they know the facts?
-- Anonymous
Lanier: I sued him at first and let him out. I deposed him and asked if he would have prescribed the drug had Merck told him the truth. He said, "no." You have to watch out for the Learned Intermediary defense.
Any reason not to file a lawsuit on a good case?
-- Bill Ogletree, Ogletree Abbott
Lanier: Nope.. Just figure out where best to file it... Federal court, state court (Texas or New Jersey).
When working w/ on a claim where a large/well recognized co. acknowledges "some" exposure, what techniques do you suggest to motivate the co. to negotiate & make legitimate offers?
-- J. A. Luce, Boyd-Veigel, P. C.
Lanier: Prepare the case with full intentions to try it as soon as possible.
Normally they pay and settle maximum amounts only when fearing a real trial.
Was this a bifurcated trial? I never heard one way or another.
-- Anonymous
Lanier: Nope. They wanted it all at once!
I went to law school with Dara Hegar. Did she help with the trial?
-- Curtis Clinesmith, Clinesmith & Lynch
Lanier: She is phenomenal! (Hope she's not reading this or I'll have to give her a raise). She knew the documents as well as anyone. She worked 20 plus hours a day, just 5 months after giving birth to her first daughter.
Would you share your jury questionnaire with us?
What was your initial reaction to having so many young people on your jury? How did you decide which witness to put on first?
What were some of the advantages and disadvantages to being in Angleton?
-- Karen Hurwitz, Karen Hurwitz & Associates, Legal and Behavioral Consulting
Lanier: Email me later for the questionnaire. I'm not talented enough to attach it here.
I was cautiously optimistic about the young folks. I disagree with juror consultants on that issue.
[Merck] had a corporate rep in the courtroom. I called her adversely first. I wanted to put her on to refute the defense's opening and to question here before she learned all the company's lines.
Advantage, get to trial quickly. Disadvantage, small towns make tough jury pools. Angleton also has pretty conservative jurors these days. They draw heavily from Pearland which is an upward middle class subdivision of Houston.
If you had to pick, what was the single greatest tool you used during the prep for this trial?
-- Kelli McGuire, Davis Comes & Maxwell
Lanier: Beyond Bullet Point, by Cliff Atkinson.
*W. Mark Lanier
W. Mark Lanier is the founder of the Lanier Law Firm, where he serves as the firm's lead litigation counsel. He represented the plaintiff in the first Vioxx case against Merck & Co. Inc. to go to trial. On Aug. 19, a Brazoria County jury awarded $253.5 million to his client, Carol Ernst, for the wrongful death of her husband.
Even before the August 2005 Vioxx verdict, Lanier was already recognized as one of the top trial lawyers in the United States. He recently was named by The American Lawyer magazine (a Texas Lawyer affiliate) as one of the top 45 attorneys in the nation under the age of 45. In 2002, Texas Lawyer named Lanier as one of the top five "Go To" personal-injury plaintiffs attorneys in Texas.
Lanier has negotiated hundreds of millions of dollars in settlements in suits filed across the United States. Most recently, he negotiated a $100 million settlement for Retractable Technologies, a syringe manufacturer, in an antitrust case against industry giant Becton Dickinson and Co., the world's largest manufacturer of medical syringes and needles. Lanier's $115 million verdict for 21 asbestos victims in February 1998 is one of the largest asbestos verdicts in U.S. history. In 1993, he won a substantial verdict of more than $400 million for a small oil company in a business fraud case against one of the nation's largest oil providers. Currently, Lanier represents numerous individuals who took the drug Vioxx, the prescription pain-relief medication that was pulled from the market after being linked to heart attacks and strokes. In addition to individuals, Lanier also represents corporations, associations and governmental entities. He frequently is asked to instruct other attorneys about his trial techniques in seminars held across the nation.
Lanier is certified as a personal-injury trial specialist by the Texas Board of Legal Specialization. He is licensed to practice in all Texas state and federal courts, as well as the U.S. Supreme Court. Lanier has offices in Houston and New York and represents clients from all over the world in courtrooms across the United States.
Lanier earned his law degree from Texas Tech University School of Law in 1984. He remains active at Texas Tech by serving on the law school's Foundation Board. Lanier was selected as the Texas Tech University School of Law Distinguished Alumnus for 2005. He also is the founder of the Christian Trial Lawyers Association, a nonprofit organization whose goal is to create a network of principled attorneys to minister to others through civic-minded endeavors. Lanier lives in Houston with his wife, Becky, and their five children.
