‘Shirt Sleeve Miners:’ Trial Lawyers Panning for Gold at Vioxx Trial
In N.J. Bellwether Case, Trial Lawyers Closely Monitor Evidence, Tactics and Jurors
In the back rows of Courtroom 3A in Atlantic City, N.J., the well-dressed men and women sit quietly, watching jurors’ faces, scribbling notes on white legal pads, listening intently to the doctors, scientists and drug company executives who testify in the case of Humeston v. Merck & Co.
Some are personal injury lawyers who represent people suing Merck over its painkiller Vioxx, which the company pulled off shelves last year. Some are Wall Street analysts keeping tabs because of its potential impact on Merck’s stock. Some are Merck consultants.
Sam Davis is here, sizing up the witnesses, jurors, judge and dynamics at play in the trial. He is looking for anything that might give him an edge when he gets his day in court.
With 100 Vioxx lawsuits already filed and hundreds of other would-be plaintiffs on retainer, Davis, a trial lawyer from Teaneck, 133 miles away, is keenly interested in what happens here. For four weeks, he has been a daily presence in Superior Court Judge Carol Higbee’s courtroom.
Who makes the best expert witness? How much scientific testimony can a juror take in before his eyes go glassy? What new wrinkles is Merck using to defend itself against allegations that it knew Vioxx was dangerous?
This kind of monitoring is standard practice for lawyers involved in class-action cases, and it occurred at the first trial over Vioxx in Texas. Typically, it is done by lawyers who have a large number of related cases and are within geographic reach of the courthouse.
“It gives you the advantage of planning a new strategy,” said Russell Herman, a veteran New Orleans trial lawyer who is the plaintiff lawyers’ liaison for Vioxx suits in federal courts.
“This is a bellwether case,” Davis said. “It’s been identified by both the court and both sides as having some value as a precedent in establishing the liability and the value of these cases. While it may take 10 or 20 trials to establish the value of all the cases, at some point, both sides will have an idea of the probability of success of those cases in New Jersey.”
In it, Merck is being sued by Frederick “Mike” Humeston, 60, an Idaho postal worker who suffered a heart attack two months after he turned to Vioxx to help with the pain from a Vietnam war wound. It’s the second such trial; a Texas jury handed Merck a major defeat in August, awarding $253 million to the widow of a 59-year-old marathon runner who died after taking Vioxx.
The drug, hailed as a wonder painkiller when it debuted in 1999, was voluntarily withdrawn by Merck after being linked to increased incidence of heart attacks and strokes in those taking it for more than 18 months.
Suing Merck over Vioxx has become something of a cottage industry for trial lawyers. To date, about 5,000 suits have been filed, including 2,475 in New Jersey, where the company is based in Whitehouse Station. Merck is vowing to fight them one by one.
Davis and a handful of other plaintiff’s lawyers are attending the trial in person. Davis, who specializes in medical cases, makes a two and one-half hour drive to Atlantic City each Monday morning, checking into a casino hotel room for the week, returning home on weekends. Davis, who bills $400 to $500 an hour, spends his days watching other lawyers in action.
“It’s a wise move,” said David Buchanan, who is trying the Humeston case along with Chris Seeger. “What you want to do is take the greatest hits and stress them in your case.”
Davis calls it a worthwhile investment. “What I’m doing here is analyzing their tactics and strategy. I’m analyzing the evidence being presented and, most importantly, I’m looking at the jury’s reaction to that evidence,” he said.
Davis and the others in the courtroom aren’t the only ones watching the New Jersey case. Other lawyers are reviewing transcripts from afar, digging for facts and strategies they can use in refining their own cases. “We are, in effect, shirt sleeve miners panning for gold,” said Herman.