May 29, 2008 12:40 PM

Mark Lanier's Faith Tested: He Loses Two Vioxx Appeals in One Day

Posted by Andrew Longstreth

Mark Lanier is a deeply religious man, but two decisions released today will test his faith. An Texas state court of appeals reversed his signature win against Merck & Co. on behalf of a widow whose husband died after taking Vioxx, Merck's controversial painkiller drug. Separately, a New Jersey appellate state court reversed a consumer fraud verdict for his client in another Vioxx trial.

"I'm alive," Lanier said when we called to ask how he was taking the news.

Of the two rulings, he says, the Texas decision stings the most. In August 2005, Lanier represented Carol Ernst in the first Vioxx case to go to trial. Ernst allegd that Vioxx caused her 59-year-old husband's death. A jury awarded her $253 million, earning Lanier a profile in The New York Times. (The American Lawyer had spotted him as a rising star a year earlier in a cover story.) Ernst's award was later reduced to $26.1 million because of Texas's cap on punitive damages.

But today's appellate ruling says that Ernst deserves nothing because she hadn't proved Vioxx caused her husband's heart attack. Merck's appellate counsel are Katherine Mackillop of Fulbright & Jaworski and Charles Lifland of O'Melveny & Myers. Lanier calls the Texas ruling "a simpleton approach that basically white washes the trial, ignores the evidence and is very conclusion based."

In the New Jersey case decided today, the state appeals court tossed a consumer fraud verdict (and more than $2 million in attorneys' fees and costs) for Lanier's client and trimmed the judgment awarded to another plaintiff in the same case which took place in 2006. (Merck was represented by O'Melveny's Lifland and Douglas Eakeley of Lowenstein, Sandler.) Lanier says the New Jersey decision was "an intellectually honest 126-page well-thought through decision that I disagree with."

Lanier says he will appeal both decisions. In a press release, though, he focused on the Texas decision. The statement's headline read, "The Lanier Law Firm Will Appeal Court Reversal of Jury Award to Widow in Nation’s 1st Vioxx Trial."

He also took a shot at the Texas judges. "Activist judges are protecting corporate executives and stripping away the rights of widows and every other victim of corporate misconduct," the release said. "This decision was handed down by a group of judges who regularly accept campaign contributions from law firms representing corporations that appear in their courts. We will appeal this decision to the United States Supreme Court if necessary.”

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