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US: Vioxx Verdict Raises Profile of Texas Lawyer

by Alex BerensonThe New York Times
August 22nd, 2005

HOUSTON - Last Wednesday, W. Mark Lanier preached to a jury in Angleton, Tex., telling seven men and five women to remember the story of David and Goliath and smite the drug maker Merck with a verdict that would be heard around the world.

On Friday, the jury fulfilled Mr. Lanier's wishes, finding Merck liable for the death of Robert C. Ernst, who died in 2001 after taking Merck's painkiller Vioxx for eight months. The jury awarded $253.5 million to Carol Ernst, Mr. Ernst's widow and Mr. Lanier's client, in one of the largest damage awards ever to a single plaintiff.

And on Sunday, Mr. Lanier was preaching again, this time at his regular Bible class at Champion Forest Baptist Church in northwest Houston, about 60 miles from Angleton.

"God has moved powerfully over the last six weeks," Mr. Lanier told more than 300 people at the church, referring to the length of the trial. He went on to teach for an hour about a letter from the apostle Paul.

For Mr. Lanier, Friday's verdict cemented his place as one of the top civil trial lawyers in America and may fuel his nascent political ambitions. His folksy style resonates with juries, but underneath his Texas twang Mr. Lanier has a fierce desire to win, a love of attention from the press and a healthy ego.

"If anyone could pull this off, it's Mark Lanier," said Jerrold Parker, another plaintiffs' lawyer who has sued Merck, after the verdict.

Before the trial began, Mr. Lanier agreed to allow a reporter for The New York Times to follow his team's internal discussions as the case progressed, on the condition that they not be revealed until the jury returned a verdict.

"I have some incredible gifts that I thank God for every day," he said the night before the start of the trial. And last Tuesday, before closing arguments began, Mr. Lanier said he had no jitters. "I don't get nervous," he said. "Am I excited? It's going to be fun. I like to do this."

To jurors, Mr. Lanier's performance may have appeared unscripted, but he meticulously planned the trial's smallest details, down to his choice of wedding band. Outside the courtroom Mr. Lanier wears a heavy band engraved with Hebrew and Greek lettering, but in front of jurors he prefers a simple gold band so they will not be distracted. For the same reason, he wore the same blue suit each day. He also hired a private investigator to examine the jurors' criminal records in search of potential hidden biases.

With the help of a 13-member shadow jury that was paid to watch the trial and report to consultants hired by Dr. Robert Leone, his in-house jury psychologist, Mr. Lanier refined his arguments each evening in Suite 922 at the Four Seasons hotel in downtown Houston, where he and several members of his team stayed during the trial.

Mr. Lanier's efforts to influence the jury began early on as he and lawyers for Merck jousted over which jurors would hear the case. He repeatedly told potential jurors about his work at his church, and sprinkled Biblical references throughout his courtroom presentations.

Despite the huge award - which a Texas law on punitive damages will reduce to $26.1 million - a guilty verdict was far from a sure thing before the trial started. Dr. Maria M. Araneta, the coroner who conducted Mr. Ernst's autopsy, had found that Mr. Ernst died of an arrhythmia, or irregular heartbeat, and no clinical trials have ever linked Vioxx to arrhythmias.

But with a combination of charm, carefully scripted PowerPoint presentations and crucial help from Dr. Araneta, Mr. Lanier overcame that hurdle. Mr. Lanier hired a private investigator to find Dr. Araneta, who had moved to Abu Dhabi, United Arab Emirates. He then persuaded her to return to Texas, where she gave a videotaped deposition in which she said she believed that Mr. Ernst had actually died of a heart attack, despite her autopsy finding.

As Dr. Araneta was preparing for her deposition at Mr. Lanier's office last month, he told his trial team that he would press her to agree with his position that a heart attack had killed Dr. Ernst.

"I'm just going to browbeat her into it," Mr. Lanier said.

But when Dr. Araneta came into his office a few minutes later, Mr. Lanier was anything but aggressive.

Instead, he offered Dr. Araneta a dose of charisma, telling her: "You're going to make such a good witness. You're going to be famous after this, you know." As Dr. Araneta showed him digital photographs of her life in Abu Dhabi, Mr. Lanier watched raptly. "You're just going to get in there and tell the truth," he said soothingly.

Two days later, Dr. Araneta gave her deposition, which was devastating to Merck's defense.

If Mr. Lanier's charm sometimes seems tactical, his affection for his staff members does not. Even on the most stressful days of the trial he rarely raised his voice and did not lose his temper. One of the few moments during the trial when he became upset was at lunch on July 28, after Mrs. Ernst testified. Some members of his trial team began to joke that Mrs. Ernst had answered Mr. Lanier's questions too literally.

"She's on the other side of the door so y'all have to be careful," Mr. Lanier said, an edge in his voice. He then predicted that Gerry Lowry, a lawyer for Merck, would cross-examine Mrs. Ernst and that the cross-examination would be a disaster for the company.

"The only reason for questions is lawyer ego," Mr. Lanier said.

After lunch, Ms. Lowry cross-examined Mrs. Ernst for 90 minutes, in one case asking about Mr. Ernst's strained relationship with his adult children, whom Mrs. Ernst does not know and who were not plaintiffs. In interviews after the trial, several jurors said they felt Ms. Lowry's questions were disrespectful and insulting.

Mr. Lanier finished the trial last Wednesday by asking jurors to punish Merck with a large award for punitive damages that would encourage the entire drug industry to be more honest about drug risks. "There are times and opportunities, and this is one of them, when you have a chance to make a statement," Mr. Lanier said. Less than two days later, the jury returned a verdict that was a major blow to Merck.

At 44, Mr. Lanier, who grew up in a middle-class family, has amassed a small fortune through his work and seems to have everything he wants. He lives with his wife, Becky, and five children, including three from his first marriage, on a 25-acre estate in a northwest Houston suburb, complete with a miniature railroad running through the grounds.

This week, he bought a pair of miniature donkeys he named Hote, short for Don Quixote, and Kong, adding to a collection of animals on his estate that already includes llamas and swans. The Laniers took a three-week vacation in Europe in June, returning barely a week before the trial began, yet he still managed to beat Merck.

Mr. Lanier looked overjoyed when Judge Ben Hardin of State District Court announced the verdict on Friday, shouting, "Amen," then hugging his client and sweeping his wife into his arms. "It's a wonderful thing to be able to experience this in America," Mr. Lanier told reporters after the verdict.

Yet unlike most trial lawyers, Mr. Lanier is a staunch Republican - even though Republicans have led efforts to make filing lawsuits more difficult and reduce large damage awards. While eating lunch on Sunday after church with his family, he derided what he called "country club Republicans" and said, "I want to clean up corporate America."

But Mr. Lanier, who is strongly anti-abortion, said he believed that social conservatives were the real force in the Republican Party and that he could win a Republican primary despite his work suing big companies. While he does not plan to run for a Senate seat from Texas that may open next year, he will consider running for Senate as early as 2008, he said. Meanwhile, Mr. Lanier intends to keep trying cases against Merck.

"I've got the best life of anybody I know," he said. "I'm truly blessed."






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