• Some backers of big national service plan say better roll it out now before the crisis atmosphere passes [Welch, Reason "Hit and Run"]
• Sorry ma’am, if hubby’s policy excludes coverage for injury to family members, you can’t blame him as “uninsured motorist” [The Briefcase, Ohio]
• Much-cited “$70/hr” figure for GM labor costs misleading: covers army of retirees, not just current workers [Salmon; but see McArdle]
• Thoughts on alleged inability of GM to get debtor-in-possession financing for a Chapter 11 bankruptcy [Oman, ConcurOp]
• Texas p.i. atty Mark Lanier famous for Xmas parties headlined by top stars, this year it’s Miley Cyrus a/k/a Hannah Montana [ABA Journal]
• “I Want Angry Jurors With Low Self-Esteem” [Bennett, Defending People]
• “We just really wanted to shatter the cupcake-pizza dichotomy. It’s just existed for too long.” [Seth Gitter via Tyler Cowen]

• Harvard’s Charles Nesson argues that Digital Theft Deterrence and Copyright Damages Improvement Act of 1999 violates Constitution by letting civil lawyers for RIAA enforce a criminal law [AP/MSNBC, Elefant]
• In some circles, bitter disappointment at reports that Obama camp probably won’t pursue Bush predecessors as war criminals [Paul Campos, Horton/Harper's; earlier]
• Latest on wrangle over “exorbitant” fee: Alice Lawrence’s deposition-skipping before her death could endanger her estate’s claim against Graubard Miller law firm [NYLJ, earlier]
• One benefit of role as law school mega-donor, as Mark Lanier is with Texas Tech, is that you get to rub (hunting-jacket) elbows with visiting Supreme Court justices [WSJ law blog]
• Lou Dobbs and Phyllis Schlafly were among those who pushed bizarre theory of secret conspiracy to merge U.S. into “North American Union” with Canada and Mexico [John Hawkins]
• Senate Dems plan to abolish secret ballot for installing unions in everyone else’s workplace, so how come they insist on one for themselves in deciding how to handle Joe Lieberman? [Dan Riehl via McArdle]
• Congrats to historian Rick Brookhiser and City Journal editor Myron Magnet, among recipients of 2008 National Humanities Medal [White House release, Brian Anderson, NRO]
• Jarek Molski, California entrepreneur of disabled-access complaints, loses bid for Supreme Court review of his designation as vexatious litigant [AP, Bashman]

Mark Lanier and other plaintiffs lawyers are giving a series of interviews where they complain that the Ernst v. Merck decision (discussed yesterday) is “judicial activism that reinterprets the evidence.” (E.g., in Texas Lawyer.) This is nonsense. Ernst follows well-stated precedent. Indeed, I predicted precisely this result and precisely the case the appellate court would use to strike down the decision the week of the jury’s verdict.

Continue Reading »

AP reports a Texas court has thrown out the infamous Ernst $26 million judgment; a New Jersey court has tossed $9 million of the judgment in McDarby. More details on Point of Law as available.

Ernst was the first Vioxx suit to go to trial. A jury awarded $253 million. Mark Lanier waited months before asking for a final judgment; at the time, I suggested that this was because he knew the case would be reversed on appeal, and did not want the bad publicity. Indeed, the appellate decision perhaps comes too late for Merck: the number of lawsuits increased from 6000 to 60000 in the months following publicity over the jury verdict, costing Merck billions of dollars in the later extortionate settlement.

With these two decisions, only three plaintiffs’ verdicts in favor of Merck remain.

Update: I still haven’t seen the McDarby decision, but an updated AP story indicates that it upheld the compensatory damages of $4.5 million, overturned the $9 million punitive damages verdict, and overturned the consumer-fraud judgment (which also saves Merck millions of dollars in plaintiffs’ attorneys’ fees).

• Judge expresses surprise at how many law firms want in on fees in Visa/MasterCard issuer settlement [NYSun]
• Mississippi bill would require a lawyer’s presence at real estate escrow closings; so rude to cite the profession’s self-interest as a factor [Clarion-Ledger]
• Following Coughlin Stoia’s lead, Mark Lanier announces he’s expanding into intellectual property litigation [The Recorder]
• Maryland legislation would require state-aided colleges and universities to report on what they’re doing to advance “cultural diversity” [Examiner via Bader/Open Market]
• New era at UK pubs? Under new directive, “employers will risk being sued if a bar worker or waitress complains of being called ‘love’ or ‘darling’, or if staff overhear customers telling sexist jokes.” [Daily Mail]
• ACLU just sued city of San Diego and snagged $900K in legal fees, but that’s no impediment to the city’s council’s enacting a special day of tribute to the group [House of Eratosthenes]
• George Wallace, who’s guestblogged here, hosts twin editions of Blawg Review #153 at his blogs Declarations & Exclusions and A Fool in the Forest, on piratical and Punchinello themes;
• Obama won’t support lowering drinking age [Newsweek]
• Such a shame for entrepreneurial plaintiffs, post-Proposition 64 if you want to sue a California business you might actually need to have been injured [CalBizLit]
• Time mag appeals $100 million Suharto libel ruling [IHT]
• Hey, no fair enforcing that fine print disclaiming liability for sweepstakes misprints [three years ago on Overlawyered]

Libertarian medical school blogger “Frommedskool” has been critical of the Vioxx litigation (regularly citing to our coverage at Point of Law). An April 2006 post about the Cona/McDarby case, however, appears to have generated a December 2007 comment from someone calling himself Mark Lanier, the plaintiffs’ attorney in the case:

Third, there was a huge amount of info Merck had that it never gave the FDA, there were smoking gun memos and emails, and there was huge harassment of the medical community done by Merck. For example, Merck did a full meta-analysis of placebo trial that showed a statistically significant increase in heart attacks, but Merck excised that from the report given the FDA. Even Merck’s head admtted they should have given the analysis to the FDA.

(Point of Law discussed the so-called withholding of the meta-analysis back in 2006. It wasn’t all that.) Fascinatingly, this comment immediately provokes comments from another lurker (just two hours later?!) claiming to be a plaintiff, reasonably asking why, if the evidence was so good, Lanier was agreeing to settle 47,000 plaintiffs’ cases for under $5 billion, essentially a nuisance settlement given that victorious plaintiffs were being awarded in the millions and tens of millions.

Continue Reading »

Actually, attorney Mark Lanier’s massive bash, for thousands of attendees “including, seemingly, every judge and politician in Texas”, would have gone forward whether or not Merck had plunked down billions, and with Lanier saying he expects only $30 million in fees plus $10 million in expenses in the affair, which was once expected to yield a much bigger payday, the atmosphere might even be subdued. (Lattman, Nov. 13). Earlier coverage of Lanier Christmas parties here and here; the only parties we’ve heard of to compare are Willie Gary’s.

Apple—usually the victim of plaintiffs’ attorneys (e.g., May 23; Feb. 2; Oct. 27; Aug. 9, 2005, etc.)—has decided to glorify one, Mark Lanier, with a three-page puff piece co-advertising Lanier and Mac computers. The story falsely portrays the multi-millionaire as a “David” going up against a Goliath, falsely claims he won two Vioxx cases (one of his “wins” was for fifteen dollars), and falsely claims he received a $250 million “judgment” in a Vioxx case (not so). For more on how Lanier really operates, see today’s Point of Law post and Point of Law’s Vioxx litigation coverage. (h/t W.F.)

To celebrate Beaumont tobacco/asbestos lawyer Walter Umphrey’s seventieth birthday, fellow Texas Tobacco Five member John Eddie Williams took over a private aircraft hangar — Umphrey’s own, in fact — “moved out the two private jets and the helicopter, added on a two-story party tent and threw a no-holds-barred tribute to Umphrey.” Music was provided by Chuck Berry, Jerry Lee Lewis and Rotel and the Hot Tomatoes, performing on two different stages, and there was some pretty decent food too. Among the 400 attendees: gubernatorial candidate Carole Keeton Strayhorn. (Shelby Hodge, “Wild soiree in hangar was Western to the hilt”, Houston Chronicle, May 14). Of course it was a mere kaffeeklatsch compared with a Willie Gary or Mark Lanier party.

Now back to your previously scheduled news story about excessive CEO compensation.

That’s the Houston Chronicle’s society-page coverage of the annual Christmas party thrown by attorney Mark Lanier, who this year brought in Dolly Parton to entertain 7,000 guests. (Shelby Hodge, “No objections raised at bash”, Dec. 14). See Dec. 23, 2003 (similar).

Someone had been buying just about all of the advertising space on Google for most of the search terms relating to the recent Ernst v. Merck case with the headline “$250,000,000 Vioxx award,” (or, even more inaccurately, “$250,000,000 Vioxx settlement”) so I decided to see what new schemes the Internet had cooked up for chasing clients. The result is this page, which offers to “refer your Vioxx case” to “Mark Lanier law firm” to review.

The most entertaining part of the site is that there are eight check-boxes to describe the plaintiff’s symptoms, presumably so that lawyers can easily evaluate the submitted case:

Patient had Heart Attack
Patient had a Stroke
Patient had other Heart Problems
Patient Passed Away/Deceased
Patient had Unstable Angina
Patient had a Pulmonary Embolism
Patient had Arterial Thrombosis
Patient had Transient Ischemic Attack

Note the utter absence of an “arrhythmia” checkbox that would describe Robert Ernst’s symptoms, though hundreds of thousands of people suffer fatal arrthymias every year. On the other hand, given the fourth check-box, perhaps Vioxx plaintiffs’ attorneys plan to sue on behalf of everyone who took Vioxx, and then died. If they wait long enough, that will eventually be all of them. Earlier Vioxx ads/spam: Jan. 5; Dec. 22.

Social conservative trial attorney Mark Lanier, late of the Ernst v. Merck Vioxx verdict, is contemplating a 2008 Texas Senate run, sez the New York Times. (Alex Berenson, “Vioxx Verdict Raises Profile of Texas Lawyer”, Aug. 22).

The Democrats’ complete sell-out to the litigation lobby in 2004 quite likely cost them the presidential election because of the unprecedented counter-reaction by the business lobby, and the Dems have shown no signs of ceasing their self-destructive path of obstructing tort reform in the 109th Congress. It doesn’t even look like the Party is even going to get a mess of pottage out of it, because the litigation lobby isn’t going to keep funding the Democrats almost exclusively if they can protect their billion-dollar special interests through trial-lawyer RINO Republican politicians. See also Aug. 21 and Aug. 18.

Fortune has the best coverage of the Thursday opening statements, and notes the contrast between the opening statements of plaintiff’s attorney Mark Lanier, which was illustrated by pictures of a steamroller and a shell game, and Merck attorney David C. Kiernan, which the magazine seems to think made a mistake in respecting the intelligence of the jury by relying on the science behind the case instead of folksy name-calling. “If the company hoped to win points with the public for erring on the side of safety—its stated public rationale for having pulled the drug—the wager may have been naïve.” And if plaintiffs’ attorneys succeed in punishing Merck for taking safety measures, it’s bound to reduce safety in the future. Meanwhile, the New York Times publishes a puff piece on the plaintiff widow fed to the newspaper by the attorneys, barely acknowledging that her husband died of an arhythmia rather than a blood clot, and then failing to note that Roger Ernst was just one of 200,000 victims a year of fatal atherosclerosis (except in the small print of a photo of the coroner’s certificate), and thus was not “healthy and fit” regardless of whether he was a triathlete. The Times reveals a rogues’ gallery of plaintiffs’ lawyers helping out Lanier, without giving any indication of their unseemly background: Benedict Morelli (Nov. 23, 2003) and Fred Baron’s wife, Lisa Blue of Baron & Budd (Jul. 15, 2004; Jun. 17, 2004 and links therein). (Roger Parloff, “Stark Choices at the First Vioxx Trial”, Fortune, Jul. 15; Alex Berenson, “Contrary Tales of Vioxx Role in Texan’s Death”, New York Times, Jul. 15; Alex Berenson, “Jury Is Selected for Case Involving the Drug Vioxx”, New York Times, Jul. 14; Alex Berenson, “In First of Many Vioxx Cases, a Texas Widow Prepares to Take the Stand”, New York Times, Jul. 13; previous Overlawyered coverage: Jul. 1, Jul. 11 (includes my disclaimer), POL Jul. 15). Plaintiffs’ attorney Daniel Keller is liveblogging the trial, albeit not in the most objective fashion. Further coverage: Jul. 29, Aug. 19 ($253 million jury verdict).

Merck withdrew the painkiller Vioxx from the market when a study showed that it increased the risk of heart attack and stroke after eighteen months of use. 59-year-old Robert Ernst died suddenly of arrhythmia after taking Vioxx for seven months. No studies connect Vioxx to arrhythmia, but press coverage of the Brazoria County case, the first Vioxx products liability case to go to trial, has focused on the widow’s love for her husband rather than the lack of scientific controversy or asking why this case is going to trial at all. (Most press accounts repeat Carole Ernst’s claim that her husband was perfectly healthy; only the AP and USA Today mention in passing that Ernst’s autopsy showed atherosclerosis: two arteries partially blocked with plaque.)

Attorney Mark Lanier’s jaw-dropping theory, noted without rebuttal by the AP: “Mr. Lanier’s team says sudden death doesn’t leave enough time for the heart muscle to show whether Vioxx caused any damage.” The lack of evidence of damage is just proof of how insidious the drug is! As we noted on July 1, Lanier (Dec. 23, 2003) doesn’t seem interested in proving causation beyond innuendo. If you look through the press accounts, note especially the AP’s dramatically staged photo of Lanier in the New York Times: the case must be scientific because of all the pathology textbooks in the foreground of the shot! (Alex Berenson, “First Vioxx Suit: Entryway Into a Legal Labyrinth?”, NY Times, Jul. 11; Kristen Hays, “Jury selection to begin in Vioxx case”, AP, Jul. 10; Dana Calvo, “Vioxx Trial Could Set Precedent for Merck”, LA Times, Jul. 11; Richard Stewart, “Motion challenges plaintiff’s experts”, Houston Chronicle, Jul. 11; Kevin McCoy, “Merck to face first Vioxx trial before Texas jury next month”, USA Today, Jun. 30; Kristen Hays, “Lawyers gear up for first Vioxx suit against Merck”, AP/St. Louis Post-Dispatch, Jun. 28).

Continue Reading »

Writes Larry Ribstein (Jun. 24): “It’s bad enough the corporate fraud trials are about resentment, but now guilt by resentment seems to be spreading to products liability cases.” In a Vioxx trial expected to begin next month in South Texas, according to a WSJ report, folksy plaintiff’s lawyer Mark Lanier is planning to lay on the exec-bashing with a trowel while going light on such matters as the explication of statistical significance in side-effect data. See Barbara Martinez, Lawyer Outlines Attack on Merck For Vioxx Trial”, W$J, Jun. 24. More: Point of Law, Feb. 8. Further coverage: Jul. 11, Jul. 15, Jul. 29, Aug. 19 ($253 million jury verdict).

Attorney Willie Gary, frequently mentioned in this space (see Apr. 1-2, 2002 and links from there) sent out 275,000 invitations this year to his annual holiday party in Stuart, Fla., a fabulous bash that has been called South Florida’s premiere party; tens of thousands attended (Tyler Treadway, “Liberally distributed, invitations to Gary festival more elaborate each” (sic), TCPalm.com (Scripps newspapers), Dec. 11; “Thousands take part in Gary’s holiday fete”, Dec. 13). Gary had an extra reason to celebrate this year, because a jury on Dec. 12 awarded $18 million to one of his clients, a road builder who said he was defamed by an investigative-journalism piece in the Gannett chain’s Pensacola News-Journal (see Mar. 30, 2001). (”Florida jury awards $18 million to road builder”, AP/First Amendment Center, Dec. 16). (More on case: Jan. 7; appeals court reverses, Oct. 25, 2006)

In Houston, meanwhile, trial lawyer W. Mark Lanier expects 5,000 holiday attendees at his 25-acre estate for what he bills as the “best party in the world”, now in its twelfth year. Lanier, who is noted for buying asbestos items on eBay and in 1998 won a $115 million verdict for 21 plaintiffs in an asbestos case, hired Bill Cosby to entertain the crowd this year; previous years’ talent have included Barry Manilow, Crosby, Stills, and Nash, Diana Ross, and the Dixie Chicks. (Jonathan D. Glater, “Houston Holiday: Barbecue, Al Green and 5,000 Guests”, New York Times, Dec. 15)(fee archive) Incidentally, the Times also reports the following: “‘I support tort reform that gets rid of the garbage cases,’ said Mr. Lanier, who is a Republican. ‘I do not support the medical malpractice reform because I think it hurts the good cases and doesn’t do anything to restrict the garbage cases.’”