Defense Lessons of the Vioxx Verdict

Kevin Quinley and Cindy Khin

A product liability trial against Merck’s Cox-2 inhibitor Vioxx in Angleton, TX, late this summer resulted in a $253 million award, $229 million of which was for punitive damages.

Merck reportedly plans a vigorous appeal on multiple grounds, including claims that the court erroneously permitted testimony from unqualified experts, testimony not based on reliable scientific evidence, irrelevant and prejudicial evidence against Merck, and an undisclosed surprise witness against Merck. Observers on both sides agree that the award will likely drop to $26 million due to recent Texas tort reform caps on punitive damages.

Although it is easy in retrospect to second-guess Merck’s defense strategy, the first Vioxx trial still offers instructive lessons on risk management and claim defense for life sciences companies and medtech manufacturers that—on a smaller scale—grapple with similar product liability issues. Following are some of the case’s take-home lessons, based on the pitfalls into which Merck stumbled.

Avoid “Big Guns” in Small Town USA. From the start, Merck embraced a strategy of foregoing settlement and trying Vioxx cases. It lined up the best and brightest: Williams & Connolly (Washington, DC), Fulbright & Jaworski (Houston), and Hughes Hubbard & Reed (New York City). These are large and superb defense law firms, but they may not have played well to a jury in Brazoria County, TX. Postverdict interviews quoted some jurors saying they tuned out the defense team altogether.

Don’t Bank on Deterrence. Merck viewed this case, among all its Vioxx cases, as winnable. Merck felt that science was on its side (and maybe it was). Plaintiff Ernst died of cardiac arrhythmia, not a heart attack and not a stroke. No solid scientific evidence has linked Vioxx to cardiac arrhythmia. Ernst had only been on Vioxx for eight months. Merck’s research showed that patients using Vioxx for more than 18 months had a heightened incidence of heart attacks and strokes. Reportedly, Merck selected this claim as a test case to gauge its national strategy to try each case individually. Subsequently, the Wall Street Journal reported that the company has mellowed and may settle some Vioxx cases. 1 The deterrence theory—the notion that trying cases discourages other claims—has surface appeal but is often a pipe dream. Merck lost in Angleton, TX, and now thousands of additional plaintiffs across the globe are filing additional claims.

Don’t Count on Technical Testimony. Merck was convinced that causation was on its side. No good studies showed that Vioxx caused fatal cardiac arrhythmias. The problem was that the experts were too scientific and did not speak to jurors on a lay-person level. Legal defenses relying on technical, medical, and scientific experts often cause jurors’ eyes to glaze over. Testimony goes over their heads. Referring to the scientific and medical defenses put on by Merck’s lawyers, one juror reportedly said after trial, “We didn’t know what the heck they were talking about.” 2 As one letter to the Wall Street Journal editor stated shortly after the verdict, “Why our society entrusts its most complex scientific disputes to 12 people who are scientifically ignorant is so utterly illogical that no one could possible defend it in a court of reason.” 3

Encourage Executives to Give Live Testimony. Merck’s CEO and other corporate reps did not testify live at the trial, only by video. This may have rankled some jurors. One juror said, “The big guys didn’t show up—that didn’t sit well with me. Most definitely an admission of guilt.”

Don’t Ignore Internal Documents. The trial included disclosure to the jury of troublesome internal documents, mainly e-mails. The training program for sales reps who fielded doctor questions was termed “dodgeball.” The company’s top scientist wrote of the possibility of increased cardiovascular events, showing jurors that there were sizable concerns two years before Vioxx hit the market.

Don’t Cut Investigative Corners. Apparently, Merck’s defense team did not track down the coroner who performed the autopsy on the deceased. But the plaintiff’s team did. And then they interviewed her and then flew her in from Abu Dubai to testify live at trial. While her diagnosis of cause of death was cardiac arrhythmia secondary to coronary atherosclerosis (hardening of arteries, which is years in the making), she could not rule out a causal connection to Vioxx.

Seek Independent Feedback. A shadow jury is a group of laypeople who mirror the local jury pool as closely as possible. They sit as observers during trial and give periodic feedback to the attorneys about what is working and what is not. Many experts feel that in high-stakes litigation, a shadow jury can help attorneys fine-tune trial tactics, gauge strategy, and make midcourse adjustments. Plaintiff attorney Mark Lanier had a shadow jury in the courtroom. It convened daily and was debriefed by a jury consultant. In turn, the latter told Lanier what was working and what was not. Mostly, the feedback was that the plaintiff’s approach was clicking with the jury. The consultant urged Lanier to drive home the theme that this jury had the world’s attention and the world would want to hear from it.

Don’t Read to Jurors. Reportedly, Merck’s defense opening was read by David Kiernan (a Williams & Connolly partner). It sounded clinical and may have turned off jurors. Read aloud to kindergartners, not to jurors in multimillion-dollar lawsuits.

Humanize the Defense Theme. Plaintiff attorney Lanier—a part-time local Baptist minister—made the case human. He made the lawsuit about the plaintiff, not the science. He appealed to feelings—to loss, outrage, and retribution. Without notes, he presented his opening statement with about 80 PowerPoint slides, maintaining eye contact with jurors.

Invest in Audiovisuals. Lanier hired a PowerPoint expert to create slides for his case. These included images like Merck’s name with three walnut shells—“Merck Duped the FDA”—and pictures of plaintiff Robert Ernst finishing a marathon with the caption, “Picture of Health.” Such images apparently helped sell his theme to the jury.

Don’t Discount Marketing Backlash. Lanier used the aggressive Merck marketing techniques against the company by projecting words like “dodgeball,” neutralizing and discrediting witnesses on the stand, and constantly driving home bad documents to the jury.

Be Gentle. Reportedly Merck’s defense team cross-examined the grieving widow for 90 minutes. By some accounts, it was painful to watch. This may have evoked sympathy among jurors for the plaintiff and provoked hostility toward Merck, which was perceived as a corporate bully. Playing hardball with sympathetic witnesses can backfire against aggressive defendants. Such tactics may produce inflammatory awards for punitive damages as well. Things will not get easier for Merck. The next Vioxx case set for trial reportedly features a plaintiff who is a Vietnam War hero.

Don’t Mess with Texas. The Lone Star state is still a dangerous venue, even with recent state tort reforms. Judges are elected in Texas, and local law firms are major financial contributors to reelection campaigns. It remains easy for corporate defendants to get “home towned” in Texas. If you are trying a case in a place like Angleton, TX, get a local lawyer to try the case. Just having Texas defense counsel may not overcome the stain of being an out-of-towner.

Step Out of Boardroom Mentality. A group of defense attorneys and executives sitting around a conference room table can easily convince themselves that they are good people, mean no harm, and deserve the benefit of the doubt. Further, if the claim before them has weak causation, they might believe it lacks merit and should be tried. However, what matters most is what a group of lay jurors will think and how it will view corporate conduct.

Conclusion

Awards of the magnitude seen in the Vioxx case do not happen only to big drug companies. Nor do they happen only in Texas. Medtech executives would do well to learn from Merck’s experience and avoid repeating some of the tactical mistakes listed above.. Medical device companies want blockbuster products and revenues, not blockbuster headlines or jury awards.

References

1. “Merck Eases Stance on Vioxx Suits,” Wall Street Journal (August 26, 2005): A3.

2. “The Vioxx Hex,” Washington Post (September 16, 2005): A30.

3. Robert W. Smyth, “Verdicts Indefensible in Court of Reason [letter],” Wall Street Journal (September 9, 2005): A17.

Kevin M. Quinley is senior vice president and Cindy Khin is assistant vice president for insurance operations at Medmarc Insurance Group (Chantilly, VA). The authors can be reached via kquinley@medmarc.com and ckhin@medmarc.com, respectively.

© 2005 Canon Communications LLC

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