Saturday, August 20, 2005
The first Vioxx verdict
Those who care about such things are abuzz today with discussion of yesterday's $253.4 million Vioxx verdict against drug-maker Merck & Co. in Brazoria County, just south of Houston. Several of my readers have emailed me asking for my reactions, which is always flattering, but in this instance it leaves me feeling somewhat inadequate. I don't think I have any particularly interesting or unique insights, and I certainly don't have anything even remotely approaching "inside information." Perhaps some of my speculation is better informed than some others' might be, though, so I suppose I'll share a little bit of that and some general observations along with them. But if you're expecting to learn something new and astonishing, or to read a rant either for or against this verdict, I'll warn you now that you're going to be disappointed when you've finished reading this post.
Over the last 25 years I've appeared many, many times before various judges in Angleton, the county seat of Brazoria County, but less so in the last 10 than in the first 15 years. I don't believe I've ever tried a case to a jury verdict there. By reputation in the local civil trial bar, Brazoria County is still generally regarded as one of the more pro-personal injury plaintiff venues in Texas, but considerably less so now than it was, say, 20 years ago. The entire state has become less pro-plaintiff over that time period; the state-court trial judges there, like most other places in the state now, have mostly been appointed by Republican governors and/or elected as Republicans. And Brazoria County's pool of potential jurors, which historically showed a heavy pro-plaintiff influence from the largely unionized trade/craft workers at several major industrial plants located there, has shifted somewhat toward a better-educated, higher-income, more management/professional flavor as the greater Houston metropolitan area has continuously sprawled across Harris County's southern border with Brazoria County, mostly along (and probably due largely to the recent and ongoing improvements to) State Highway 288. There are certainly still worse places in Texas to be sued from the point of view of a Fortune-500 corporate defendant, but overall I'm sure Merck would rather its first Vioxx trial had been held elsewhere. So to the question "Would this verdict have been the same in Harris or Dallas Counties?" my answer is a resounding "I dunno — maybe, but maybe not."
From the fairly rudimentary AP report on the composition of this particular jury as reprinted in the Houston Chronicle, nothing in particular jumps out at me. I would perhaps hazard a wild guess that the parties' respective jury selection strategies probably turned out to be fairly conventional (i.e., based on occupational, educational, and perhaps ethnic/racial stereotypes). This particular jury was perhaps a little more anglo and a little less well educated than I'd have expected, but not remarkably so. I'm considerably more confident that in this sort of case, both sides had and used jury consultants, shadow jurors, mock trials, focus groups — all the bells and whistles that are designed (depending on your viewpoint) to supplant or enhance a good trial lawyer's gut instincts (which I still tend to value more than any of them, but I'm old-school). I'd love to read the transcript of the voir dire examination, with a particular focus on what challenges for cause were and were not sustained; but that's just idle curiosity on my part, really.
As for the dramatis personae, as identified in another AP story reprinted in the Chron: I'm pretty sure I've never appeared in any capacity before the Hon. Ben Hardin, the state district judge who presided over this particular case, nor do I know anything significant about him by reputation. I don't know plaintiff's counsel Mark Lanier personally, nor anything about him other than what I've read in the popular press. I am acquainted with Gerry Lowry of Houston mega-firm Fulbright & Jaworski, and I've had a handful of cases in which she's been among counsel of record, and I've seen her at a few hearings and depositions, but I've never tried a case with or against her. She has a solid reputation, and I do believe her to be a genuine trial lawyer and not just a candy-assed litigator. (Pardon my crudity, but this is the way most real trial lawyers talk among each other, and regular readers will know that recognizing someone as a genuine trial lawyer is the most profound compliment I can bestow on any lawyer who has an adversary practice.) Fulbright has loads of experience and an awfully deep bench; using Fulbright as its Texas counsel was a safe, if conventional, choice for a company like Merck. I don't know anything about the Williams & Connolly lawyers, and I have no idea, as between them and the Fulbright folks, who had what responsibilities and roles. So if there's an obvious scapegoat, I don't know who it would be. [But see my update below — Beldar.]
So what's my reaction to the size of the verdict? Well, it certainly got my and lots of other folks' attention, as the jury quite avowedly intended. But as most of the even semi-in depth press accounts are reporting, based on fairly recent Texas tort-reform legislation, all but the tip of that iceberg is essentially certain to be trimmed away by the trial judge by the time he turns that verdict into a judgment. And just based on its ratio to the rest of the actual (i.e., non-punitive) damages awards, it wouldn't surprise me at all if either the trial judge or the appellate courts trim deeper into the "mental anguish" award than what the statutes mandate. If pressed to guess, my hunch is that the trial court will eventually sign a judgment that's still in the low to low-ish eight figures.
Beyond that, though, folks, I really don't have a strong opinion about either the size or the propriety of the verdict. I didn't see the trial; I don't know the evidence and have no basis to assess the various witnesses' credibility; and I don't trust anyone in the popular or legal press to pre-digest those things for me, at least not to voice a public opinion here on them. Can I imagine a set of facts that might justify an award of the size that this will likely turn into? Oh, sure. Can I likewise imagine circumstances that would peg this as a jury run amok, an aberration? Ayup. But I'd just need to know a whole lot more than I know now in order to pick between those alternatives. And I really can't comment intelligently yet on the likelihood, for example, of this jury's verdict and a trial court judgment based on it being overturned on appeal.
Fortunately, since I'm a blogger rather than a network correspondent or professional pundit, I don't have to force out a stronger set of opinions about this case than I actually have, just to gratify the sponsors or drive up the ratings. If I read something about the case elsewhere that prompts me to comment, or develop stronger opinions, I might write more later.
To be sure, some one-time factors did cause the Angleton case to be particularly disastrous for Merck. In the future, its lawyers will presumably avoid cross-examining 60-year-old widows for 90 minutes, as Gerry Lowry — one of Merck's lead lawyers in this case — did to Mrs. Ernst. Ms. Lowry, for example, repeatedly questioned her about Mr. Ernst's relationship with his adult children from a previous marriage, whom Mrs. Ernst does not know and who were not a part of the lawsuit.
Mr. [Peter A. ] Bicks, [an] outside [defense] lawyer [with Orrick, Herrington & Sutcliffe's New York office who is not involved in the Merck litigation], said Ms. Lowry's approach was fraught with unnecessary risks. "Conventional trial wisdom is that there is no reason to personally attack a person who has lost a loved one."
That kind of remark made in this sort of context frankly tends to chap me. Yeah, that is indeed the conventional wisdom. And again, I lack personal knowledge sufficient to weigh in on whether Ms. Lowry's cross-examination of Mrs. Ernst was or wasn't particularly high-risk, insensitive, or over-the-top. Maybe attorney Bicks would have done it differently; maybe I would have too, but I don't know enough to say so with confidence. But however aggressive Ms. Lowry's cross-examination was, I'm extremely confident that its length, tone, and topics were deliberate tactical choices, and that they were choices made not by Ms. Lowry alone, but almost certainly after considerable internal consultation with other lawyers on the defense team, and very probably also with in-house lawyers from Merck and/or jury consultants. Indeed, whether and how to challenge a potentially sympathetic plaintiff would be exactly the kind of issue — in a case like this one, with these sorts of stakes and a defendant with effectively unlimited resources and motivation to prepare incredibly thoroughly — likely to have been a specific point of testing and inquiry in secret mock trial/focus group sessions, quite possibly using videotape from Mrs. Ernst's actual pretrial deposition in this case. In short, if it was "fraught with risks," this cross-examination was almost certainly calculatedly so, with the risks knowingly assumed by the client as being justified by hoped-for gains.
Perhaps attorney Bicks, with whom I'm not acquainted, was quoted out of context or his comments were truncated; perhaps he watched the whole trial in person; or perhaps he has inside sources from the defense team that I lack. But the sort of Monday morning quarterbacking — with its dripping implication that the defense team just made a stupid blunder — that this comment at least seems to reflect is overly facile, probably misleading, and offensive as heck. That the NYT would fall for this kind of ersatz wisdom — or, possibly, solicit it; or, possibly, even create it through selective reporting and editing — doesn't surprise me. I watched it go on for many months in the media circus after Pennzoil v. Texaco. But I hope that attorney Bicks wasn't just trying to make sure that the NYT spelled his name right for his and his firm's marketing purposes. And I guarantee you that Ms. Lowry and her partners at Fulbright & Jaworski don't need lawyers from New York City, nor the New York Times, to come to Texas to teach them how to try jury cases.
Other weblog posts, if any, whose authors have linked to The first Vioxx verdict and sent a trackback ping are listed here:
» Vioxx around the blogs from PointOfLaw Forum
Tracked on Aug 22, 2005 2:47:10 PM
» The Merck verdict from Trolling In Shallow Water
Tracked on Aug 24, 2005 9:51:06 PM
» More about the Vioxx verdict from BeldarBlog
Tracked on Aug 24, 2005 11:28:47 PM
(1) DRJ made the following comment | Aug 21, 2005 1:03:54 AM | Permalink
I respect jury decisions and I'm glad that we have them, as opposed to relying solely on judges. But after 25 years of watching juries make decisions in my own and other trials, I am struck by how unpredictable juries can be and by how frequently juries focus on something insignificant (at least to the parties and lawyers) and decide the case based on what seems like a peripheral legal or factual issue. If it can happen in my little cases, I can't help but wonder about big cases like this one.
(2) LazyMF made the following comment | Aug 22, 2005 10:41:01 AM | Permalink
When I heard the jury verdict I was shocked.
I worked some Angleton civil cases during the early 1990s - early 2000s (including a five day personal injury jury trial I 2nd-chaired that went to verdict). My partner had considerable experience with the people in the county (having once pastored a church in Freeport). I would describe the county as anything but pro-plaintiff. The blue collar population leans towards conservatism and deep religous beliefs. They also have a growing population of suburbanites from Pearland. However, this may not have been the typical Brazoria County jury. I read accounts during the trial that said they were a particularly young jury. Even so, this has to be a very unexpected verdict.
(3) YGB made the following comment | Sep 3, 2005 5:06:03 AM | Permalink
Just a few observations:
Having tried a number of cases in Federal Courts around the country and having spent quite a bit of time observing "litigators" in the SDNY (I'm not going to use the term "trial attorney" for these folks) and having spent a good deal of time in the litigation groups of a couple large NYC firms, I find the Orrick guy's characterization of the 90 min cross not surprising in the least. My experience with large firm litigation is that witness examinations and cross are often run on fear of not looking like what a lawyer is expected to look like rather than any coherent attempt at getting a message that a jury can understand. I've observed, when an associate, cross examinations on cases where I've personally spent the most time on of the entire team - "platooning" is the name of the game for large firms - where I couldn't understand what the lead guy on my team was getting at. What would a jury get out of such a presentation. The focus-group approach is also often misused as a crutch at large firms -- it's akin to what causes corporations to hire consultants -- jury consultants and focus groups are used as a safety and CYA blanket and as a device to please the client and justify costs with a show and often substitute for real experience and judgment. Crosses of become a mass collection of minute discrepancies between depos and trial testimony: I actually saw this one last week in a labor case closing argument "In her affidavit she wrote that x and Y were fired on March 13, while on cross testifying that it was on March 18" (with the difference only noteable for it being a difference. There are a million and one ways to do things wrong and much fewer ways to do it right -- if you were raised in a firm, particularly a large one, you may not get a chance to even see it done right. This closing included a garbled version of the standard of proof and an hour long recitation that left the jurors visibly disinterested with some staring at the gallery. The opponent's closing included trivializing someone's medical condition to such a degree and with such casualness that it was breathtaking. And condescension....
Jurys can look random, but I will tell you this in most of the cases I've seen counsel are well matched in their mediocrity (I'm not saying that the didn't have the mechanics down or had spent a lot of time prepping -- these included the power point dodads, etc) and thus, is it a surprise that the verdict looks random with so little to choose between the parties? The dificulty in many of those litigators I've worked with have in understanding how a jury could rule the way it does is perhaps telling. I've come to believe a well presented trial is in many ways akin to a good sales presentation and part of what makes for a good salesman is the ability to understand the audience -- most are not good at this. I've also heard the phrase, "runaway jury" tossed about after an adverse verdict -- think about that term and ask yourself "who left the gate open and allowed them to run?"
(4) YGB made the following comment | Sep 3, 2005 5:25:30 AM | Permalink
And I'll say this about sharp hostile crosses. I agree that without being there it is often hard to say what should have been done. I, personally, do not believe a harsh cross is a good thing in almost any situation, except perhaps in a rare rare situation to demonstrate a real righteous indignation against someone who deserves it -- a widow like this, partcularly given what I saw of her demeanor in interviews might not be my choice for such a cross. I will tell you that I have sat in on any number of crosses where the examining attorney -- sometimes on my side -- has confronted a witness with a paraded of inconsistencies in a way that has made me feel for the witness. The individual inconsistencies are often so disparate and disjoint and sometimes so technical, that it becomes easy to get lost in the detail -- even the examiner has to consult his notes to keep track, and when it starts to feel like an attack, you can almost hear the jurors start to empathize" "How would it feel to be asked such questions in such a tone, I might get a couple details confused under those conditions also."
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