He's taking on Vioxx maker on its home turf

HOUSTON -- When the lawyer who won a $253 million judgment against Merck & Co. in August begins his next Vioxx trial tomorrow, he will leave little to chance. From the first word, Mark Lanier wants the jurors' attention. By the final one, he wants their vote.

The 45-year-old Texas lawyer describes himself as ''just a common person." But this common man earns $10 million in a good year, and his firm will receive 13 percent of the Vioxx judgment (though it will probably be reduced under Texas law).

Lanier, a Baptist preacher and father of five, is schooled in long-dead languages, owns a 25-acre Houston estate, and throws holiday parties that have featured Dolly Parton, Diana Ross, and the late Johnny Cash.

In the courtroom, he approaches jurors with a strategy that is part Oprah, part psychologist, and part MBA. That makes him a potential Merck slayer.

The nation's third-largest drug maker has been pummeled by nearly 10,000 lawsuits following its September 2004 decision to pull Vioxx from the market after a study it funded showed that long-term use of the popular painkiller doubled the risk of heart attacks and strokes.

Merck said it warned the public and physicians about the risks, and last week renewed its pledge to fight each Vioxx suit. But the trial scheduled to begin tomorrow in Atlantic City could be the most important one the company faces.

In other cases, some won handily by Merck, Vioxx was blamed for the heart problems of people who had taken just a few pills.

But the New Jersey state judge hearing this trial has asked for cases that allege the same harm Merck's own research found: Heart problems following long-term use. If the company prevails, it could curb new lawsuits; a loss could spur more. Some analysts estimate Merck's potential legal liability at $30 billion.

But can Lanier repeat his Texas win in the state where Merck is based? Don't bet against him, said David Berg, a Houston attorney. He calls Lanier a ''singularly brilliant trial lawyer."

''I do believe the difference will be Mark Lanier," said Berg, author of ''The Trial Lawyer: What It Takes To Win."

As he did in the Texas trial that resulted in the staggeringly large judgment, Lanier carefully prepared for this latest challenge. He will trade his comfortable glasses for a pair from Prada that show more of his face. He'll wiggle off a wide, gold wedding band inscribed in Hebrew and replace it with a plain, thin one. He'll scrape clean week-old stubble. And, day after day, he'll wear the same suit to court. The changes are based on post-trial juror interviews. Lanier wants to eliminate anything that distracts from the case.

He will open the trial with a story because jurors like them, he said. His current favorite, set in Atlantic City, is about a shady casino dealer who got rich at players' expense. He'll ask jurors: Shouldn't those players get their money back from the cheat? And shouldn't Merck pay for the suffering it caused patients through its misdeeds?

Lanier tested the parable on a sample jury selected to represent the background and temperament of the panel he expects to face this week. During actual trials, he plants staffers in the courtroom to read juror reactions so he can make real-time revisions to his presentation.

The Brazoria County courthouse in Angleton, Texas, where Lanier became a legal juggernaut is about 40 miles from his Houston law firm. The interstate goes past county roads with numbers instead of names, tightly wound hay bales, and sprawling ranches that are home to registered quarter horses and Black Angus.

Surprisingly, there are similarities between Brazoria and New Jersey's Atlantic County.

Whites are the majority in both (77 percent in Brazoria, 68 percent in Atlantic). Nearly 20 percent of Brazoria County residents older than 25 have earned at least bachelor's degrees, compared with 19 percent of Atlantic County residents. The median household income was $48,632 in the Texas county and $43,933 in its New Jersey counterpart.

But, driving around Atlantic City to prepare for the trial, Lanier struggled to find signs of a middle class. That is the economic slice of the population considered the most willing to right the wrongs of bad corporate citizens.

Also, Merck is a major New Jersey employer. Jurors could be chilled by the prospect of creating major financial difficulties for a company that writes the paychecks of friends, neighbors or relatives.

Lanier says he understands the house odds.

''We're going into [Merck's] backyard and asking their neighbors to hold them accountable. And that's hard to do," he said.

During jury selection, Merck will seek to seat business-savvy jurors more likely to be interested in hard evidence than softhearted pitches, predicts Peter A. Bicks, a partner in the New York office of Orrick, Herrington & Sutcliffe. Bicks is in a rare class: He has beaten Lanier in court.

Still, Lanier says he will essentially bring the same case to Atlantic City that was successful in Texas. And he plans to rely on the same storytelling techniques to conjure images that burn into jurors' memories.

His client is one of the two plaintiffs, Tom Cona, a 59-year-old slightly overweight former smoker who suffered a heart attack after taking Vioxx for at least 18 months.

Lanier will tell jurors that Merck knew Vioxx could cause such serious side effects, but continued to promote the painkiller.

''Maybe 'murderous' is too strong a word. 'Horrendous' is too weak a word. The crimes of Merck will still take front and center stage," Lanier said recently over lunch at a Houston restaurant near the mega-church where he earlier led a class attended by 300.

He was joined by three generations of Laniers, including his children -- ages 6 to 21 -- his mother, wife and a sister, at a table large enough to grace a corporate boardroom.

The New England Journal of Medicine's demand for a correction from the authors of a Journal article about Vioxx also will figure prominently in the case, he said. The Journal contends that by under-reporting heart attacks, the authors -- who had financial ties to Merck -- misled physicians about Vioxx safety. Last week, the authors defended their approach.

''It's going to take the teeth out of Merck's argument of, 'Oh, gee, this is much to-do about nothing,' " Lanier said. The correction demand is crucial, he said, because ''it mattered to the editors of the New England Journal of Medicine. And they don't have a dog in our fight."

Lanier is convinced that the New Jersey judge will allow him to wheel into court 157 boxes of Vioxx data that Merck submitted to the Food and Drug Administration, just as he did in Texas.

Victor Schwartz, American Tort Reform Association general counsel, suspects Lanier will face tougher standards in New Jersey.

''Some of the firebrand stuff that he was able to get away with in Brazoria County, he won't be able to get away with," Schwartz said.

Indeed, Merck lawyers filed a motion on Feb. 6 with just that in mind. It asked the judge to keep Lanier from making ''irrelevant and prejudicial" statements. The motion included 14 ''infractions" by Lanier in the Texas case, including his mention of Merck's former chief executive's salary, and a comment he made within earshot of jurors that Merck changed the Vioxx label to reflect cardiovascular problems ''about two years too late."

But Lanier could still come up with a few surprises.

For instance, during an asbestos trial, he dribbled salt onto a teaspoon -- the amount of asbestos a worker would inhale in a year -- while he chipped away at an expert witness's credibility.

In another case, he wanted jurors to see a 60-foot tank in which four workers succumbed to toxic fumes. Lanier said it was defective.

The judge rejected a site visit for the jury. The next morning, the tank sat in front of the courthouse ready to be tagged as the plaintiff's 14th piece of evidence. Lanier had it moved.

Lanier said he builds his cases around how juries absorb information. Repetition works, to a point.

''I think three times is a minimum for retention for most people in a long, drawn-out affair," he said. ''I think people pay more attention at the start of the day. Around 2 in the afternoon, they fall asleep mentally.

''I make sure I start off each morning with a bang. I make sure I work extra hard to keep their attention during the afternoon. I try to start my case with something very, very strong. I try to end it on a high note."

None of that mattered when Lanier represented Kelly-Moore Paint Co. in a lawsuit alleging fraud by supplier Union Carbide Corp. Kelly-Moore sought $5.6 billion in damages. Jurors took fewer than three hours to decide the six-week trial, voting 11-to-1 for Union Carbide.

The National Law Journal ranked it among the top defense wins in 2004.

Charisma and charm are overrated, said Bicks, the lawyer who bested Lanier in that case. ''At the end of the day, jurors focus on evidence."

Gregory Wilson, the jury foreman in the Kelly-Moore case, said Lanier upstaged opposing counsel by making exaggerated faces and by dramatically scribbling notes.

Wilson also remembers the private detective at his door after the trial.

He says Lanier's unsuccessful effort to reverse the verdict included having the detective rummage through his trash for financial information. Lanier says the detective merely interviewed Wilson's chatty friends.

Merck, meanwhile, has solidified its defense in each successive case, Schwartz said, and its retooled defense team features new lead attorney, Christy D. Jones.

''It's going to be quite a contest. You have very good lawyers on both sides," he said.

Diedtra Henderson can be reached at dhenderson@globe.com.