Recipe for Disaster

If you want a runaway jury award, here is a recipe:

Hire big-gun, out-of-town law firms to try cases 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, based in Washington D.C., Houston's Fulbright & Jaworski, and New York City's Hughes Hubbard & Reed. These are large and superb defense law firms, but they may not have played well to a Brazoria County, Texas, jury. Post-verdict interviews quoted some jurors as saying that they tuned out the defense team altogether.

Bank on the deterrence theory. Merck viewed this case, among all its Vioxx cases, as winnable. Merck felt that science was on its side (and maybe it was). The plaintiff, Robert 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 been on Vioxx for only eight months. Merck's research showed that only patients using Vioxx for longer than 18 months had a heightened risk of heart attacks and strokes. Reportedly, Merck hand-picked this claim as a test case to gauge its strategy to try each case individually. The deterrence theory, the notion that trying cases discourages other claims, has surface appeal but often is a pipe dream. Merck lost in Angleton, and thousands of additional plaintiffs across the globe filed new claims.

Count on legal defenses' relying heavily on scientific, medical, and technical testimony. Merck was convinced that causation was on its side. No good studies showed that Vioxx caused fatal cardiac arrhythmia. 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. Referring to Merck's scientific and medical defenses, one juror reportedly said after trial, "We didn't know what the heck they were talking about." As one letter to the Wall Street Journal 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."

Videotape top corporate honchos and avoid live testimony. Merck's CEO and other corporate representatives did not testify live at the trial, only by video. This 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." Not good.

Discount the impact of bad documents. The trial included disclosure to the jury of troublesome internal documents (e.g., e-mail). For example, a sales rep training program for fielding doctor questions was termed dodgeball. The top company scientist wrote of the possibility of increased cardiovascular events, demonstrating to jurors that there were sizable concerns two years before Vioxx hit the market.

Cut investigative corners. Apparently, Merck's defense team did not track down the coroner who performed the autopsy on the deceased. The plaintiff's team did, interviewed her, and then flew her in from Abu Dubai to testify at the trial. Although 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.

Filter out independent feedback. During the trial, the plaintiffs' lawyer, Mark Lanier, used a shadow jury. This is a group of lay people who, as closely as possible, mirror the local jury pool. It sits to observe the trial and give periodic feedback to the attorneys about what is working and what is not. Many experts feel that in high stakes litigation such as Vioxx, a shadow jury can help fine-tune trial tactics, gauge strategy, and make mid-course adjustments.

Lanier had a shadow jury in the courtroom. It convened daily and was debriefed by a jury consultant, who 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.

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 lawsuits.

Do not humanize your defense theme. Lanier, a part-time local Baptist minister, made the case human, made the lawsuit about the plaintiff not the science. He appealed to feelings, of loss, outrage, and retribution. Without notes, he presented his opening statement with about 80 Power Point slides, maintaining eye contact with jurors. It worked.

Under-invest in audiovisual aids. Lanier hired a Power Point expert to create slides for his case. These included images such as Merck's name with three walnut shells, Merck Duped the FDA, and pictures of plaintiff Ernst finishing a marathon with the caption, "Picture of Health." This apparently helped sell his theme to the jury.

Discount the odds of your marketing's being used against you. Lanier used aggressive Merck marketing techniques against the company, projecting words such as dodgeball, neutralizing and discrediting witnesses while on the stand, and constantly driving home bad documents to the jury.

Play rough. Reportedly, Merck's defense team cross-examined the grieving Texas 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, 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.

Play Texas Hold'em. 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 re-election campaigns. It remains easy for corporate defendants to get home-towned in Texas. In venues such as Angleton, it makes good sense to get a local lawyer to try the case. Just having Texas defense counsel may not overcome the out-of-towner stigma.

Consider board room reality over courtroom reality. Defense attorneys and executives sitting around conference tables can easily convince themselves that they are good guys, meant no harm, and deserve the benefit of the doubt. Furthermore, that the claim before them has weak causation. Ergo, the claim lacks merit and should be tried.

It matters not, however, what a bunch of suits sitting around a meeting room think. It matters much what a group of jurors will think and how they will view corporate conduct. If the O.J. Simpson and Michael Jackson trials teach us anything, it is that there is courtroom reality and then there is reality. What matters is what a skilled attorney can sell to a jury of lay people.

Do not think that these types of awards can happen only to big companies. Do not think that they happen only in trials in Texas. Do not think that it could not happen to you.

Learn from Merck's experience and avoid the risk management and claim headaches that flow from a blockbuster award. Your business enterprise or client wants blockbuster products and revenues, not blockbuster headlines or jury awards.

Kevin Quinley CPCU, AIC, ARM, is senior vice president of Medmarc Insurance Group in Chantilly, Va. He can be reached at kquinley@cox.net.