Jury Selection Set to Begin in Second Texas Vioxx Trial

HARLINGEN, Texas – Leonel Garza was 71 when he died of a heart attack, 23 years after being diagnosed with heart disease and decades after a heart attack and a quadruple bypass.

But his lawyers who are suing Merck & Co. (MRK) say it was the Vioxx that he took for arm pain for 17 days that killed him. Jury selection is scheduled to begin Tuesday in Rio Grande City, a town of about 12,000 people less than five miles from the Texas-Mexico border.

Even though the New Jersey pharmaceutical giant is facing hundreds of lawsuits from people who took the once-popular painkiller before it was pulled from the market, Garza's case would have little hope of making it to trial anywhere but the Rio Grande Valley, some legal experts say.

"What you're seeing is a case that is strong in the merits for Merck but has got to be balanced on the challenges Merck will face in that jurisdiction," said Peter Bicks, a New York City lawyer who has successfully defended large companies in Texas and has been watching the Vioxx litigation. "This jurisdiction has been viewed as one of the toughest jurisdictions for corporate defendants in the country."

But Leila Watson, a Birmingham, Ala., plaintiff attorney with about 70 Vioxx cases, said Garza was "exactly the kind of patient there should have been a warning for."

"Nobody should have given this patient Vioxx, and I don't fault the doctors," she said.

The Valley is a known prize for "venue shopping" by trial lawyers looking for large verdicts from sympathetic jurors, said Bill Summers, president of the Rio Grande Valley Citizens Against Lawsuit Abuse.

"If the company they're suing has even a remote tie to the Valley they want to come here, because they think they can get a better deal," Summers said.

The Valley became the national poster child for the costs of lawsuit abuse in April 2002, when hundreds of doctors closed their offices to protest insurance premiums that had quadrupled in a few years because of the high number of medical malpractice lawsuits.

Doctors began to leave the region in such numbers that some specialties were unavailable to the more than 1 million people who live there.

"Many courts in other counties would toss this case because of the standard that no reasonable juror could find for the plaintiff in this situation," said Victor Schwartz, counsel to the American Tort Reform Association. "It's been our experience that many of the courts in the Rio Grande Valley are very, very friendly to plaintiffs' counsel and let cases go forward."

The ATRA named the overwhelmingly Mexican-American region at the bottom of Texas Rio Grande Valley the nation's top "judicial hellhole" for 2005, a distinction it gives to places where judges uphold "extraordinary" jury awards and seem to favor plaintiffs over defendants.

Bicks said Merck's biggest challenge likely would be with jury selection, when defense attorneys can ferret out jurors who may have a bias against big business.

He cautioned that Merck's argument that Garza didn't take the drug long enough to suffer any heart damage hasn't been the slam dunk Merck might have hoped for.

"From a tactical standpoint a plaintiff may have decided this case isn't worth a pursuing in another jurisdiction," he added. "But from a legal standpoint these cases so far have survived."

Merck & Co. withdrew Vioxx from the market in September 2004 when a study showed it could double risk of heart attack or stroke if taken for 18 months or longer. However, it says no such risk has been shown for shorter periods.

According to Garza's lawyers, Garza was given Vioxx on April 4, 2001, and suffered a fatal heart attack 17 days later. Merck said he was given a week's supply; the plaintiff's lawyer has said it was a month's worth of the drug.

"I'm not aware of any good scientific data, even if you accepted everything plaintiffs say, to show a risk in the time frame in this case," Merck lawyer Richard Josephson said.

The FDA decided in April 2005 that there doesn't appear to be an elevated risk of heart attacks from taking Vioxx for short periods.

Plaintiff attorney Joe Escobedo, who is seeking unspecified damages for Garza's family, did not return calls for comment on the case.

But in other media reports, he has criticized the defense team for a delay tactic that is not unusual in the Valley, in which local state representatives are hired on to the team so that the case cannot open until the close of the biennial legislative session in Austin.

Last January, state Sen. Juan "Chuy" Hinojosa, D-McAllen, joined the defense for one day. He withdrew from the case the next day, saying he didn't know Merck planned to file a continuance.

Hinojosa has gotten bad press before for joining defense teams in high-profile cases, including the first rollover case against Bridgestone/Firestone Inc. to go to trial, in McAllen, in 2001.

Merck quickly hired Rep. Rene Oliveira, D-Brownsville, and filed a second legislative continuance.

Josephson, heading the defense team, said Oliveira has been playing an active role in the case.