Defense attorneys in the nation's fourth Vioxx trial may face their biggest challenge Tuesday when they select a jury from what's considered one of the most plaintiff-friendly regions in the country, legal experts say.
Jury selection began Tuesday morning in Rio Grande City, the county seat of Starr County and an overwhelmingly poor and predominantly Mexican-American county on the U.S.-Mexico border.
Those picked for the jury may be deciding if 71-year-old Leonel Garza's fatal 2001 heart attack was caused by 23 years of heart disease or by about three weeks of taking Merck & Co.'s Vioxx for arm pain.
"This jurisdiction has been viewed as one of the toughest jurisdictions for corporate defendants in the country," said Peter Bicks, a New York City lawyer who has successfully defended large companies in Texas and has been watching the Vioxx litigation. "It will place a premium on very good jury selection skills by Merck."
Starr County's Rio Grande Valley is a target 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.
David Stahl, a Chicago defense attorney who has defended cases in the region, said the case will boil down to scientific explanations why it wasn't the drug versus disclosures from the plaintiffs of how Merck knowingly marketed something that was potentially fatal.
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 in September 2004, when a study showed it could double risk of heart attack or stroke if taken for 18 months or longer. However, Merck says no such risk has been shown for shorter periods.
Plaintiff attorneys say the company knew of the risks and decided to sell its inventory anyway.
In previous trials, Merck lost a case in a Texas court and won in a New Jersey court. A federal trial ended in a mistrial.
"For the plaintiffs it comes down to a question of candor and does the jury think the defendant was being honest and putting all its card on table," Stahl said. "If they think they're trying to hide something, that's when the defendant gets slammed."
Leila Watson, a Birmingham, Ala., plaintiff attorney with about 70 Vioxx cases, said, "Nobody should have given this patient Vioxx, and I don't fault the doctors."
Victor Schwartz, general counsel to the American Tort Reform Association, said the case would give Judge Alex Gabert and jurors a chance to help change the region's reputation.
"I think a lot of people will be watching what happens in this case to see whether there's fair and evenhanded justice," he said. "Not pro-Merck, but not pro-plaintiff either."
Jury selection is expected to take a day and the trial is expected to last more than two months.