Correction: An earlier version of this article incorrectly referred to Mike Leach as the football coach at Texas A&M. In fact, Leach is the coach at Texas Tech, Mark Lanier's alma mater.
Mark Lanier told The Am Law Litigation Daily on Friday that he's not expecting any miracles on Monday, when he begins the first trial to test claims that Pfizer's anti-epilepsy drug Neurontin increases patients' risk of suicide. He'll be lucky, he said, to eke out a win. "I've got a near impossible case," Lanier told us. "If I lose, it's almost like a focus group educational experiment. If I win, it portends bad things for Pfizer." [Hat tip to Bloomberg, which offers this insightful trial preview.]
The case, the first of some 1,200 Neurontin suits in the pipeline, was brought by the family of Susan Bulger, a 39-year-old woman who took the drug before hanging herself in 2004. The suit, in federal district court in Boston, claims Bulger was taking Neurontin to treat epilepsy, as well as mood swings and arthritis pain (for which the drug was not approved but was allegedly marketed). "Our argument is that the drug company took advantage of fragile and unfortunately situated [patients] by marketing a drug illegally," Lanier said. "They made Neutronin a snake oil to treat everything, when the FDA had not approved the drug for much of anything." (Sounds like Lanier was trying out his opening statement on us!)
Lanier, who is representing about 600 of the families who've sued Pfizer, said the company picked what it considered a weak case to try first. That point was echoed by Boston federal district court Judge Patti Saris, who, at a pre-trial hearing, called Bulger's case "very tough" because of the plaintiff's "personal history." Lanier does not disagree. "[Bulger] tried to commit suicide three times. She prostituted herself. She abused drugs."
But Lanier, a perpetual optimist, said that just puts more pressure on Pfizer's lawyers. "If I lose it's no big deal, but if I win, it's like, 'Holy Toledo, is the case that bad or are the lawyers that bad?'" (We're big college football fans here at the Am Law Daily, so we have to point out that Lanier has mastered the coach's art of downplaying expectations in an underdog situation. His pal Mike Leach of Texas Tech would be proud.)
Representing Pfizer are William Ohlemeyer -- a Boies, Schiller & Flexner partner who is the former associate general counsel for cigarette maker Altria Group -- and Mark Cheffo of Skadden, Arps, Slate, Meagher & Flom. Who's the lead? Pfizer isn't saying (and its lawyers aren't commenting), but Lanier said defense lawyers told him that if he argues Bulger's case, Ohlemeyer will take the lead for Pfizer.
We were surprised that this type of pre-game intrigue would continue right up to the brink of trial. What's Lanier's take? "I guess they think he matches up better," he told us. "Or maybe it's because they don't want to confuse the jury with two Marks in the courtroom."
So is he going to take the lead for Bulger? "That's the plan," Lanier said. (Hard to imagine circumstances in which he wouldn't.)
We'll check back in with Lanier after the trial for the post-game interview.
This article first appeared on The Am Law Litigation Daily blog on AmericanLawyer.com.