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).
Tagged as:
Fred Baron,
Mark Lanier,
product liability,
Vioxx
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).
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Tagged as:
jury selection,
Mark Lanier,
product liability,
Texas,
Vioxx
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).
Tagged as:
Mark Lanier,
product liability,
Vioxx
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.’”
Tagged as:
asbestos,
Mark Lanier,
Willie Gary
