30 octobre, 2006 22:01

A New Obstacle for Vioxx Case Attorneys: an Intermittent Trial Schedule

Brenda Sapino Jeffreys

Texas Lawyer

01-23-2006

Lawyers trying the nation's next Vioxx suit, which begins on Tuesday in Starr County, Texas, will need to find ways to work with a less-than-favorable trial schedule calling for four days in the courtroom a month.

Because 229th District Judge Alex Gabert also sits in Duval and Jim Hogg counties, he set a trial schedule for the Vioxx suit that works into his travel around his district in the Rio Grande Valley. That poses big challenges for lawyers on both sides, who will jockey to leave the jury with favorable evidence to think about during the extended breaks in the trial.

"You want to go out with a bang every Friday," says W. Mark Lanier, whose client won a $253.5 million verdict in Angleton in August 2005 in Carol A. Ernst, et al. v. Merck & Co. Inc., the nation's first Vioxx trial.

Joe Escobedo Jr., a lawyer for the plaintiffs in Felicia Garza, et al. v. Michael D. Evans, et al., says he was hoping for more than one week a month for the trial, but he says the disjointed schedule will affect logistics more than his trial strategy.

"That is a concern, but there is nothing to do about it," says Escobedo, a partner in Hockema, Tippit & Escobedo in Edinburg, Texas.

Kent Jarrell, a spokesman for the Merck defense team, says, "We're just prepared to present our case no matter what the arrangements. We understand this is a circuit court judge and he has responsibilities in other counties," Jarrell says. "We don't want to get into how that changes our case."

According to a clerk for Gabert, the trial will begin on Tuesday and run through Friday. It will resume Feb. 14 for a four-day week, again March 14, and April 11, if needed.

Merck's defense lawyers in Garza are Richard Josephson and Travis Sales, partners in Baker Botts in Houston, and Rene Oliveria, a partner in Roerig, Oliveria & Fisher in Brownsville. Jarrell says he is the spokesman for the defense lawyers.

Garza will be the next Vioxx suit to go to trial, but it may not be the next one to have a verdict, due to Gabert's trial schedule. Lanier, of the Lanier Law Firm in Houston, goes to trial on Feb. 27 in Atlantic City, N.J., before Judge Carol E. Higbee, and that jury could return a verdict before jurors reach a verdict in Garza in Starr County. Lanier's client in New Jersey, Tom Cona, alleges in Cona v. Merck & Co. that the Vioxx he took for 18 months caused his heart attack, Lanier says.

Garza will be the first in 2006 and the fourth Vioxx suit to go to trial, following Lanier's state-court win in Angleton, a defense win in state court in New Jersey and a mistrial in federal court in Houston.

'NO RELIABLE EVIDENCE'

The family of Leonel Garza Sr. alleges in its second amended petition that the Vioxx a physician gave Garza on April 4, 2001, caused his fatal heart attack on April 21, 2001.

The plaintiffs sued Vioxx manufacturer Merck & Co. Inc., of New Jersey, and two of Garza's doctors, Michael D. Evans and Juan D. Posada.

The plaintiffs allege in their petition that Evans, Posada and Merck were negligent, and they also bring claims of strict liability, breach of warranties, negligent misrepresentation, gross neglect and gross negligence against Merck.

In the petition, the plaintiffs, who include Garza's widow, three sons and a daughter, seek unspecified actual and punitive damages. Garza died at age 71.

According to the second amended petition, Evans and Posada are represented by Ronald G. Hole, a partner in McAllen's Hole & Alvarez, but Hole did not return two telephone messages left at his office.

In a written statement on Jan. 10, Merck defense lawyer Ted Mayer, a partner in Hughes, Hubbard & Reed in New York, says there is "no reliable evidence" the pain-killer Vioxx caused Garza's heart attack.

"We are confident that any fair jury will find that Vioxx had nothing to do with the unfortunate passing of Mr. Garza," Mayer says.

Jarrell says a motion for summary judgment Merck filed in January lays out the company's defense. In the motion, Merck alleges Garza's heart attack came after "decades of severe and debilitating cardiovascular disease" and was not caused by Vioxx.

"Plaintiffs ... claim that Mr. Garza's death was caused not by his pre-existing heart condition, clogged arteries, smoking, obesity, and other health problems, but by his purported ingestion of a common, therapeutic dose of Vioxx over a period of one week, nearly three weeks before his death," Merck alleges in the motion.

Gabert was expected to consider the motion for summary judgment at a hearing on Thursday, but he did not, Jarrell says, rule on the motion before presstime.

Jarrell says Gabert denied Merck's motion seeking a continuance on Thursday on the ground that defense lawyer Ricardo Cedillo, a shareholder in Davis, Cedillo & Mendoza in San Antonio, was unavailable due to a trial conflict.

CHEMISTRY CLASS

The plaintiffs team in Garza will "have to work really, really hard to keep momentum going," says Lanier.

"The plaintiffs have the burden of proof. The plaintiffs have to move the ball, and that's a momentum game. That makes it a lot tougher for the plaintiffs," he says.

Another plaintiffs lawyer who handles Vioxx suits, Tommy Fibich, a partner in Fibich, Hampton & Leebron in Houston, says the intermittent schedule will be a problem for defense and plaintiffs lawyers trying the suit.

"The central themes are going to be more dominant. In that regard, I kind of tend to think it probably favors the plaintiffs. On the other hand, that's not a schedule that I think anybody ought to like, because it lends itself so much to outside influences," he says. "There is so much opportunity for things to be talked about ... particularly in a rural, small community. I would worry about something unwittingly getting before them."

Jarrell declines to discuss how the trial schedule may affect the presentation of the suit. But both sides face similar challenges.

Mary-Olga Lovett, a shareholder in Greenberg Traurig in Houston who does defense work in pharmaceutical suits, says the key challenge to the schedule is maintaining continuity, particularly in complex drug cases where testimony can be technical.

"When you have to stop, start, like this, it's distracting," Lovett says, adding that the lawyers will have to, after breaks, repeat information and reinforce information presented to jurors.

"I don't think juries have any problem grasping complex testimony if you give it to them in a building-block format ... but the problem is, you do it step-by-step, you lay the foundation, you teach through the scientific and technical data [and] two weeks ago, who remembers what they learned in chemistry class," she says. "It's going to be an interesting challenge."

The suit has had a long route to the courtroom.

The plaintiffs lawyers filed the suit in March 2003. On two occasions, once in 2003 and once in 2005, Merck removed the suit to federal court, but in November 2005, U.S. District Judge Eldon Fallon of New Orleans, who is presiding over the Vioxx federal multidistrict litigation, remanded Garza to the 229th District Court in Starr County.

Earlier this month, Gabert set the trial for Jan. 24.

Escobedo says he will try the suit along with his partner David Hockema and Kathryn Snapka, a partner in Corpus Christi's Snapka & Turman. Kevin Dubose of Houston and Alexandra W. Albright of Austin, both of Alexander Dubose Jones & Townsend, are assisting with motions, Escobedo says.

Merck voluntarily withdrew Vioxx from the market in September 2004, after a study indicated the drug could double the risk of heart attack or stroke if taken for 18 months or longer.