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To say that the Texas trial team defending drug maker Merck & Co. Inc. was having a rough time of it in court on July 5, would be understating the obvious. In Carol A. Ernst, et al. v. Merck & Co. Inc., Richard Josephson, a partner in the Houston office of Baker Botts, was arguing a motion for a 60-day continuance on behalf of Merck before Judge Ben Hardin, who presides over the 23rd District Court of Brazoria County, Texas. The plaintiffs — the widow and children of Robert Ernst — were blaming the drug manufacturer for the death of 59-year-old Ernst, who died of heart problems after taking the once-popular pain-killer Vioxx for tendonitis in his hand. The suit has been pending since 2002, long before H.B. 4 put a cap on economic damages in Texas, and long before Merck withdrew the drug from the market in September 2004. In their First Amended Petition, the plaintiffs allege, among other things, that the drug company was negligent because it failed to adequately warn Ernst about the risks associated with taking Vioxx and the company engaged in a civil conspiracy to conceal the dangers of the drug from consumers. Merck has consistently denied the allegations, claiming in its Original Answer that Ernst’s death was caused by an “act of God” and the plaintiffs’ suit is barred by, among other affirmative defenses, “the doctrines of estoppel or statutory and regulatory compliance.” Merck also claims it acted responsibly, pulling Vioxx off the market after studies revealed that its arthritis drug increased the risk of heart attacks and strokes, when continuously taken for longer than 18 months. Hardin denied Merck’s motion for continuance, and the suit, which went on trial Monday in Angleton, Texas, is the first of several thousand Vioxx cases in the country to go to trial. That motion was premised on the perceived prejudice resulting from a suit filed against Merck on June 30 by Texas Attorney General Greg Abbott. Much like the Ernst case, the state alleges in Texas v. Merck & Co. Inc., filed in state district court in Travis County, Texas, that Merck defrauded the state’s Medicaid program by falsely advertising the safety of Vioxx and “willfully misrepresenting its own studies.” The suit garnered national headlines because Texas is the first state to file suit against Merck and is seeking an estimated $250 million in damages, in part as reimbursement for the estimated cost of 700,000 Vioxx prescriptions filled by pharmacists for Texas Medicaid patients. Merck alleged in its motion that it was suspicious of the timing of the state litigation, finding it coincidental that Texas should be the “first state” to file such a suit, a mere 11 days before a “first of its kind” Vioxx case goes to trial … . Merck asked the court “to continue the trial of this case on the ground that recent pretrial publicity has destroyed any possibility that Merck can receive a fair trial.” Mark Lanier of Houston’s Lanier Law Firm who represents the Ernst plaintiffs seemed equally outraged. “Merck’s action in seeking a continuance violated a valid Rule 11 agreement that neither side would seek a continuance except for the sickness of lead counsel,” he says in an interview. But rather than pursue sanctions against Merck, Lanier asked that the court order that Merck’s “filing counsel undergo 8 hours of community service.” Such penance would “reflect the number of hours counsel for plaintiffs have spent responding to the frivolous motion,” alleged Lanier in his response to the motion for continuance. Although Hardin didn’t order community service, he refused to grant the continuance. Prominant plaintiffs lawyer Lanier is now the central character in what his associate, Ken Soh, anticipated would be a “mob scene.” “We have gotten cold calls from lawyers with Vioxx cases around the country,” Soh says. “There are 7 million documents in this litigation and a lot of lawyers want to see what the case looks like live and in front of a jury. The court reporter is going to be able to buy an island after the case is over.” Indeed, lawyers from throughout the country associated with other Vioxx lawsuits packed the courtroom for four hours of opening statements Thursday. The trial is expected to last five weeks. Judging from its lawyers involved in Ernst, Merck should have its own gallery of litigation support. Leading the case as co-chairs are Fulbright & Jaworski partner Gerry Lowry of Houston and partner David Kiernan of Washington, D.C.’s Williams & Connolly. They will be receiving assists from lawyers in Fulbright’s Houston and Dallas offices. Josephson and two other Baker Botts attorneys are also listed as counsel for Merck on court documents. And overseeing all Vioxx litigation on a national level is New York-based Hughes Hubbard & Reed. With these lawyers and more, Merck should have little problem executing its national litigation strategy: Take every case to trial. “Our philosophy is driven by the fact that these cases are so individual, with different medical histories, different medicines taken for different durations and different risk factors for cardiovascular disease,” says Fulbright partner Jonathan B. Skidmore of Dallas who also represents Merck. “Plaintiffs have the burden of proving that it is the Vioxx and not the individual risk factors that lead to the injury.” CAUSATION, THE ISSUE Hughes Hubbard & Reed spokesman Kent Jarrell recognizes that Merck has its hands full in defending its first Vioxx case: “Mark Lanier is a good, flamboyant attorney,” says Jarrell, and the suit is being tried in a county that is historically friendly to plaintiffs. Jarrell contends, however, that the trial will be no cakewalk for the plaintiffs either. “This is not a normal Vioxx case, which is about the risk of heart attacks and strokes being increased by the use of the drug,” Jarrell says. “Lanier is going to make this about the behavior of the company. We plan on making it about the specifics of causation.” The defense team contends the autopsy results are on its side. The medical examiner who conducted the autopsy concluded that the cause of death was “cardiac arrhythmia secondary to coronary atherosclerosis.” According to the defendant’s “Background Science Brief,” atherosclerosis, a pre-existing, undiagnosed coronary artery disease that can take years to develop, put Ernst at risk for cardiac arrhythmia, which can lead to sudden cardiac death. “No reliable scientific evidence has ever demonstrated that Vioxx causes cardiac arrhythmias. As noted, the scientific debate about Vioxx has centered on whether it causes adverse cardiovascular thrombotic events [blood clots]” leading to myocardial infarction (heart attacks). Even assuming Ernst suffered a heart attack, Merck maintains that Ernst had only been taking Vioxx for six to seven months and no “placebo-controlled study” has demonstrated a statistically significant association between Vioxx and heart attacks unless it is taken for more than 18 months. Ernst might have presented like a healthy man who ran marathons and lived life with gusto, but his coronary heart disease made him a walking time bomb — or so Merck argues. “I win the case whether it is a heart attack or arrhythmia,” Lanier argues. “Merck internally knew that Vioxx caused both. Merck knew it before it sold its first pill. I don’t have to use outside experts. I will use Merck’s own documents, their own e-mails, their own scientists.” And it’s not as though Merck is settling heart attack cases, Lanier adds. “If they agreed this was a heart attack case, they would just say, “Hey, this guy just ate too many cheeseburgers.’ They would find something in his medical history. They are fighting everything.” Of course, Lanier doesn’t intend to go quietly into the night either. He claims that Merck saw Vioxx as its next blockbuster drug and was willing to disregard its own research because it was about to lose the patents on six of its most profitable drugs. In their First Amended Petition, the plaintiffs allege that “Defendants concealed the serious cardiovascular risks associated with Vioxx because a successful launch of Vioxx was viewed as critical for Merck and safety concerns over … cardiovascular events would have drastically impacted Merck’s positioning in the market as compared to its competition drug, Celebrex.” The Merck trial team hopes to paint a more favorable picture of Merck’s corporate ethics. “From researching the medicine in 10,000 patients prior to FDA approval, to monitoring it on the market, to voluntarily withdrawing it, the story of how Merck acted responsibly will be told to the jury,” Skidmore says. And what about Merck’s contention that Ernst wasn’t taking Vioxx long enough to have increased his risk of a cardiac event? “That’s just bogus,” Lanier says. “Vioxx can kill you after 18 months; it can kill you after six weeks.” Bogus or not, Merck is banking on the science to save it. “Plaintiffs must establish to a reasonable degree of medical certainty that Vioxx probably — not possibly — caused Mr. Ernst’s fatal cardiac arrhythmia,” maintains Merck in its motion for summary judgment. “They cannot do so. This failure of proof is fatal to each and every claim.” “The name of the game for the defense is to knock out the expert witnesses on causation and then move for a summary judgment or directed verdict,” says Professor Steven Goode, who teaches evidence at the University of Texas School of Law. “If the expert is making too great a leap from the data to his or her conclusion, then the testimony might be viewed as scientifically unreliable and inadmissible.” Lanier is downright dismissive of Merck’s attempts to exclude the plaintiffs’ expert testimony. “Basically they don’t want our scientists to testify about anything,” he says. “They have filed real thick briefs that basically say, “If it hurts Merck, don’t let Lanier say it.’” IMPACT OF THE CASE Because of its trial strategy of trying each case to verdict, Merck downplays the impact that Ernst, or any one case for that matter, might have on the rest of its Vioxx litigation. “No doubt this case has been receiving a lot of media attention,” Jarrell says. “But the general counsel for Merck wants to try these cases one by one and we expect to be litigating them for many years to come.” The significance of Ernst, however, is not wasted on the plaintiffs bar. “A first trial like this is important for setting the tone for the rest of the litigation,” says Paula Sweeney, a partner in Dallas’ Howie & Sweeney and past president of the Texas Trial Lawyers Association. “It allows the parties in other litigation to see the first set of cards that everyone is holding.” And if the plaintiffs get a substantial verdict, adds Sweeney, it can raise the settlement value of all the other cases. If the plaintiffs lose, however, “it could have a huge negative impact on the other litigation — although it doesn’t necessarily mean you fold up your tent.” Zona Jones, who represents numerous plaintiffs in Vioxx cases, cautions not to read too much into a first case. “I don’t think the hopes of all the plaintiffs hinge on the success or failure of this case, but it can show some early signs of what can happen,” says Jones, a partner in Beaumont’s Provost & Umphrey. “Sometimes verdicts can be so large [as in the fen-phen litigation] that they are viewed as an aberration rather than a true view of what the litigation is all about.” Lanier candidly admits that Merck with all its legal resources, vast wealth and global reach is “the odds-on favorite to win the case.” And historically, plaintiffs lawyers lose the first few mass torts cases, until they learn from one case how to win the next. “General wisdom has it that I should lose,” he says, “but I’m never one to bet on general wisdom.” Associated Press reports contributed to this article.

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