Houston hotshot Lanier takes on Merck again
Lanier, the only lawyer to defeat Merck in a Vioxx lawsuit, faces drug maker in its home state of N.J.
By Aaron Smith, CNNMoney.com staff writer

NEW YORK (CNNMoney.com) - Mark Lanier, the only lawyer so far to defeat Merck in a Vioxx-related lawsuit, will face off with the drug maker again, but this time Merck has the home field in New Jersey and Lanier will be representing a heart attack survivor, not a widow.

Lawyers on both sides will be reined in by clocks with punch-button timers of the type used by professional chess players to keep the game moving, just in case they're feeling gregarious. Lawyers from both sides agreed to the idea, with five additional hours allotted to the plaintiffs to help them build their cases.

Lanier, a chess player and Baptist preacher from Houston, donated the clocks to New Jersey Superior Court to keep the trial moving. After all, there are nearly 10,000 more cases to go, and Merck has vowed to fight them all, one at a time.

"The clock is great!" said Lanier. "We will have 40 hours to present our evidence. The bad guys have 35. We will speak in clear, simple sentences."

Courtroom clocks are unusual, but not unique.

"It's like a clock in a basketball game: you start out with the number of minutes in the game and you count down," said Chuck Harrell, an outside counsel for Merck who has not worked with a court clock before.

Jury selection in the next New Jersey trial begins Wednesday and opening arguments begin March 6. Lanier, a Texas lawyer who woos juries with his down-home personality and demonizes adversaries with colorful bite-sized anecdotes, is representing Tom Cona, 59, of Cherry Hill, N.J., in New Jersey Superior Court in Atlantic City. Cona blames Vioxx for the heart attack he suffered in 2003, after 22 months of taking the arthritis painkiller. His co-defendant, John McDarby, 78, of Park Ridge, survived a heart attack in 2004 after four years of taking Vioxx, and is represented by Robert Gordon of Weitz & Luxenberg.

Merck (up $0.26 to $35.36, Research), a drug maker based in Whitehouse Station with $22 billion in 2005 sales, pulled Vioxx off the market in September of 2004, after a study showed increased risks for heart attack and stroke in patients who took Vioxx for at least 18 months. Since then, nearly 10,000 lawsuits have been filed against Merck. Lanier won the first suit in Texas, and then Merck won three, including one in federal court in New Orleans and two in New Jersey. A fifth trial is ongoing in Rio Grande City, Texas. Throughout, Merck has denied accusations that it tried to conceal the risks of Vioxx and has insisted that the drug didn't killed anyone.

Plaintiff health risks

Gordon, who's representing McDarby, said the plaintiff lawyers are provided with five hours more than the defense because "we have to establish more groundwork in terms of teaching about the medicine."

Harrell, who is defending Merck, said the plaintiffs will need all the help they can get, because the burden of proof is on them. Harrell said both plaintiffs have pre-existing risk factors for heart attacks, including McDarby's diabetes, and they are trying to blame Vioxx for heart attacks that they would have had regardless of the drug.

"Both plaintiffs have severe multi-vessel coronary artery disease, which was pre-existing, and they both have blood pressure and cholesterol problems," said Harrell. "The plaintiffs have the burden of proof, and they have to show that Vioxx caused these injuries and not the pre-existing health risks, and that's pretty steep."

Gordon, who is representing McDarby, said that both plaintiffs "had risk factors for heart disease, as does everyone in the world. Some people have more and others have less. Vioxx is a separate risk factor for heart attacks and was a substantial contributing factor in conjunction with other risk factors."

Lanier said that Vioxx made his client's pre-existing condition worse: "Vioxx increases your risk six times. If you have zero risk factors, six times zero is zero. If you have five risk factors, six times five is 30. My guy, of all people, should not have been on the drug."

The upcoming case is the first one in which the plaintiffs took Vioxx for more than 18 months, which was the period of time cited for increased heart attack and stroke risks in the study that prompted the drug's removal. Merck could have a tougher time defending itself against these cases compared to the earlier cases, where the plaintiffs took Vioxx for relatively short periods of time.

Frederick Humeston, a heart attack survivor and former Vioxx patient, lost his case against Merck, partly because Merck lawyers effectively portrayed Humeston as untrustworthy to the eyes of jurors. This is in contrast to the case that Lanier won, in which he successfully portrayed his plaintiff Carol Ernst, a widow whose husband died while a Vioxx patient, as sympathetic to the jury. Ernst was awarded $253 million, though Lanier said Texas state law would reduce damages to $26.3 million at 10 percent interest annually.

"Merck's modus operandi is to discredit those they don't like," said Lanier, who is representing Cona. "They will try the same with Tom [Cona.] But Tom is not in this for the money. His goal is to make Merck and other companies responsible."

Gordon, who is representing McDarby, said his client is "the salt of the earth" and will withstand any attacks to credibility. "If they want to try and paint him as an unsympathetic person, go ahead and try," said Gordon.

To find out what's at stake for Merck, click hereTop of page

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