The Plaintiff's Case
Stark Choices at the First Vioxx Trial
The attorney for the plaintiff presented simple and emotional stories that strongly contrasted with Merck's appeals to colorless reason.
FORTUNE Magazine, Friday, July 15, 2005
By Roger Parloff
On the first day of the nation’s first Vioxx trial, in a case brought against Merck by the widow of a man who died of a heart attack that she believes was caused by the painkiller Vioxx, plaintiff's lawyer W. Mark Lanier of Houston gave a frighteningly powerful and skillful opening statement. Speaking in state court in Angleton, Texas without notes and in gloriously plain English, and accompanying nearly ever point with imaginative, easily understood (if often hokey) slides and overhead projections, Lanier, a part-time Baptist preacher, took on Merck and its former CEO Ray Gilmartin with merciless, spellbinding savagery.
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The trial offers jurors a stark choice between accepting Lanier’s invitation to believe simple, alluring, and emotionally cathartic stories versus Merck’s appeals to colorless, heavy-going, soporific Reason. Lanier is inviting the jurors to join him on a bracing mission to catch a wrongdoer and bring him to justice. “You’ve got to be the detectives here,” he told them. “If this were TV, this would be CSI Angleton.” Merck, in contrast, is asking the jurors to do something difficult and unpleasant like—well—taking medicine.
Whether or not the charges prove accurate, the superficial plausibility of the claims carry enormous consequences for Merck. In most states, including Texas, the plaintiff need only convince a jury that Vioxx was a substantial contributing cause of the injury—not the cause.
Lanier’s argument today was on behalf of Carol Ernst, 60, of Keene, Texas, which is about 25 miles south of Ft. Worth. She maintains that Merck killed her 59-year-old, marathon-running husband, Robert, who died in his sleep in May 2001 of sudden cardiac arrest. “The picture of health,” according to Lanier, Ernst had been taking Vioxx for tendonitis for about 7 or 8 months when he died. During the opening, Lanier projected onto a screen photos of Bob running in a race, of Bob and Carol at their wedding, of Bob and Carol competing in a tandem-bike race. “Then things changed,” Lanier said, and the image of Bob Ernst was replaced with an empty outline of Bob’s silhouette. “Bob Ernst died.”
Lanier's story line was black and white. Merck was once a good company. But that changed when Ray Gilmartin became CEO in 1994, Lanier argued, and it lost its moral compass. “He took that company and made the needle always point toward the dollar sign,” Lanier told the jurors. Merck's key moneymaking drugs were about to go off patent and it had too few new drugs in the pipeline. When the cardiovascular problems became apparent, they had no choice but to hide them, Lanier said, because “there was no plan B.” “Nothing could stop the Merck marketing machine,” he continued. (A slide displays a steamroller.) “Merck duped the FDA,” he continued. (A slide displays an image of a pair of hands manipulating three walnut shells.)
Read Fortune's summary of Merck's lawyers' appeal to “colorless reason”
http://www.fortune.com/fortune/articles/0,15114,1083636,00.html
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